United States of America v. Donald Eugene Harvey

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 24-4448
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONALD EUGENE HARVEY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:22-cr-00226-WO-1)
Submitted: July 29, 2025 Decided: September 23, 2025
Before KING, WYNN, and BERNER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
ON BRIEF: Louis C. Allen, Federal Public Defender, Lisa S. Costner, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Winston-Salem,
North Carolina, for Appellant. Julie Carol Niemeier, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Donald Eugene Harvey pleaded guilty, pursuant to a written plea agreement, to one
count of wire fraud, in violation of 18 U.S.C. § 1343. The district court sentenced Harvey
to an upward-variant sentence of 30 months’ imprisonment to be followed by three years’
supervised release, in addition to mandatory, standard, and special conditions of
supervision. On appeal, Harvey’s counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), asserting that there are no meritorious grounds for appeal but
questioning the substantive reasonableness of Harvey’s term of imprisonment. Although
notified of his right to file a supplemental pro se brief, Harvey has not done so. The
Government has declined to file an appellate brief. We affirm Harvey’s conviction, but for
the reasons that follow, we vacate his sentence and remand for plenary resentencing.
“[I]n order to sentence a defendant to a non-mandatory condition of supervised
release, the sentencing court must include that condition in its oral pronouncement of a
defendant’s sentence in open court.” United States v. Singletary, 984 F.3d 341, 345 (4th
Cir. 2021) (citing United States v. Rogers, 961 F.3d 291, 296 (4th Cir. 2020)).
“Discretionary conditions that appear for the first time in a subsequent written judgment[]
. . . are nullities; the defendant has not been sentenced to those conditions, and a remand
for resentencing is required.” Id. at 344 (citing Rogers, 961 F.3d at 295, 300-01).
Here, our review of the record pursuant to Anders reveals that the written judgment
contains a discretionary special condition of supervised release—requiring Harvey to
submit to warrantless searches while under supervision—that the district court did not
orally pronounce in open court at Harvey’s sentencing hearing. Although the district court

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stated that it was incorporating by reference the special conditions of supervised release
listed in Harvey’s presentence report (PSR), the warrantless search condition was not
among the PSR’s recommended special conditions. Under Singletary, therefore, we must
vacate Harvey’s sentence and remand for resentencing. Furthermore, because the sentence
must be vacated in its entirety, we do not reach the question raised by counsel regarding
the substantive reasonableness of Harvey’s 30-month term of imprisonment. Accordingly,
we affirm Harvey’s conviction, but we vacate his sentence and remand for full
resentencing.
This court requires that counsel inform Harvey, in writing, of the right to petition
the Supreme Court of the United States for further review. If Harvey requests that a petition
be filed, but counsel believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on Harvey.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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