- The 4th US Circuit Court of Appeals ordered a resentencing Tuesday in a North Carolina drug case, prompting a dissent urging the court to "fix this mess."
- The decision will mean a new sentence for Amanda Marie Tostado, originally sentenced to 15 years in prison after pleading guilty to two federal drug offenses.
- The three-judge Appeals Court panel split over the impact of court precedents starting with the 2020 case United States v. Rogers.
The 4th US Circuit Court of Appeals ordered a resentencing Tuesday in a North Carolina drug case, prompting a dissenting judge to ask colleagues to “fix this mess.”
Amanda Marie Tostado faced a sentence of 125 months in prison after pleading guilty in a North Carolina federal court to two drug offenses.
During Tostado’s sentencing hearing, US District Judge Louise Flanagan also announced conditions of supervised release for Tostado after her prison term. A written judgment issued the same day did not include the exact same language Flanagan announced in court.
“There is a ‘material discrepancy between’ the ‘written and orally articulated discretionary conditions of supervision’ the district court imposed on defendant Amanda Tostado,” Judge Toby Heytens wrote Tuesday for the 4th Circuit’s majority. “That was error. And under this Court’s precedent, the remedy is to vacate and remand for resentencing.”
Heytens emphasized 4th Circuit precedent cases from 2020 (United States v. Rogers) and 2021 (United States v. Singletary).
“The government offers a series of counterarguments, all of which this Court has already rejected or are incompatible with the nature of Rogers–Singletary errors,” Heytens wrote. “Contrary to the government’s assertion, our cases do not hold that a ‘district court’s written judgment should reflect its in-court pronouncement.’ Instead, Rogers and its progeny hold that the in-court pronouncement is the sentence and controls over any contrary or additional language in the written judgment. Here, as in previous cases, the government’s arguments reflect an unwillingness to accept ‘the fundamental nature of a Rogers error.’”
Flanagan used different wording in the courtroom than in her written judgment when discussing a supervised release condition requiring Tostado to submit to warrantless searches.
“During the sentencing hearing, the district court identified one — and only one — valid basis for such a search: ‘safety issues,’” Heytens wrote. “In contrast, the written judgment imposes no such limitation, permitting Tostado’s probation officer to conduct a warrantless search so long as it is part of ‘the lawful discharge of the officer’s supervision functions.’ And because a probation officer’s lawful authority sweeps far beyond simply ensuring people’s safety, the latter formulation is ‘substantially broader’ than the district court’s ‘oral pronouncement.’”
“[W]e can imagine few more obviously material issues than when someone — including a person on supervised release — is subject to searches the Fourth Amendment would otherwise forbid,” Heytens added. “And here the written judgement purports to change or add to what the district court said at sentencing rather than clarifying an ambiguity in the oral pronouncement.”
“[N]o matter how we read the sentencing transcript, the written judgment purports to limit Tostado’s liberty in ways the district court did not announce in her presence — the very thing our Rogers–Singletary line of cases forbids,” the majority opinion continued.
Chief Judge Albert Diaz joined Heytens’ opinion. Both were appointed by Democratic presidents.
Judge Allison Jones Rushing, appointed by President Donald Trump, dissented.
“The majority vacates Tostado’s sentence and remands for a full resentencing because, when imposing one supervised release condition, the district court did not recite the condition verbatim from the written judgment but attempted to provide a helpful example,” Rushing wrote. “The Court demands full resentencing even though, in her plea agreement, Tostado agreed to be bound by the condition as written in the judgment, whether the district court orally announced it or not.”
“Our precedent in United States v. Rogers and its progeny does not require that result,” Rushing added. “Instead, Rogers allows the written judgment to clarify an ambiguous sentencing pronouncement. That is what happened here.”
“Regrettably, our Rogers jurisprudence becomes less coherent with each decision we render,” the dissent argued. “Just weeks ago, this Court held that ‘conditions … contained in [the] written judgment, but … never pronounced orally at [the defendant’s] sentencing’ are ‘”nullities” to which [the defendant] was never sentenced’ and therefore cannot be the basis for revoking supervised release.”
“By contrast, here, in an effort to explain how a defendant can appeal from such nullities, the majority proclaims the opposite: that a ‘defendant is bound by the written judgment’s terms and subject to all the consequences that could flow from violating them.’ At some point, we have to fix this mess,” Rushing wrote.