United States of America v. Marat Mike Yelizarov

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-4575
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARAT MIKE YELIZAROV,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Ellen Lipton Hollander, Senior District Judge. (1:15-cr-00261-ELH-6)
Submitted: June 29, 2022 Decided: July 14, 2022
Before DIAZ and HARRIS, Circuit Judges, and FLOYD, Senior Circuit Judge.
Vacated and remanded by unpublished per curiam opinion.
ON BRIEF: Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Ellicott
City, Maryland, for Appellant. Paul E. Budlow, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Marat Mike Yelizarov pled guilty, pursuant to a written plea agreement, to Hobbs
Act conspiracy, 18 U.S.C. § 1951(a); kidnapping, 18 U.S.C. § 1201(a); and brandishing a
firearm in relation to a crime of violence, 18 U.S.C. § 924(c). The district court sentenced
him in May 2016, to concurrent 132-month sentences on the Hobbs Act conspiracy and
kidnapping charges and a consecutive 84-month sentence on the firearm offense, for an
aggregate sentence of 216 months.
The district court subsequently granted Yelizarov’s 28 U.S.C. § 2255 motion and
vacated his § 924(c) conviction in light of United States v. Davis, 139 S. Ct. 2319 (2019)
(holding that residual clause definition of “violent felony” in 18 U.S.C. § 924(c)(3)(B) is
unconstitutionally vague), United States v. Simms, 914 F.3d 229, 233 (4th Cir. 2019) (en
banc) (holding that Hobbs Act conspiracy does not categorically qualify as a crime of
violence), and United States v. Walker, 934 F.3d 375 (4th Cir. 2019) (holding that
kidnapping does not categorically qualify as a crime of violence under § 924(c)(3)(A)).
The court vacated Yelizarov’s sentence and set a date for resentencing on the remaining
two counts.
On November 12, 2020, the district court resentenced Yelizarov to concurrent 204-
month terms on the Hobbs Act conspiracy and kidnapping offenses. Yelizarov appeals this
judgment. Yelizarov’s attorney has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), stating that there are no meritorious grounds for appeal, but addressing whether
trial counsel was ineffective for failing to argue for or obtain a lower sentence. Although
advised of his right to do so, Yelizarov has not filed a pro se supplemental brief. The

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Government has moved to dismiss the appeal based on the appeal waiver in Yelizarov’s
plea agreement.
In accordance with Anders, we found a meritorious issue that falls outside the scope
of Yelizarov’s appeal waiver and requires us to vacate his sentence and remand for
resentencing.1 Specifically, some of the non-mandatory conditions of supervised release
included in the written criminal judgment were not orally pronounced at sentencing.
To protect a defendant’s right to be present when he is sentenced, “all non-
mandatory conditions of supervised release must be announced at a defendant’s sentencing
hearing.” United States v. Rogers, 961 F.3d 291, 296 (4th Cir. 2020) (citations omitted).
“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.” Singletary, 984 F.3d at 344. “[W]e review the
consistency of [a defendant’s] oral sentence and the written judgment de novo, ‘comparing
the sentencing transcript with the written judgment to determine whether an error occurred
as a matter of law.’” Rogers, 961 F.3d at 296.
During Yelizarov’s sentencing hearing, the district court did not announce three
discretionary conditions of supervised release that it ultimately included in the written
judgment. These discretionary conditions require that Yelizarov “submit to substance
abuse testing,” “provide the probation officer with access to any requested financial
1 Because we must vacate Yelizarov’s sentence, we will not address Yelizarov’s
claim that he was denied effective assistance of counsel at sentencing. See United States v.
Singletary, 984 F.3d 341, 345-46 (4th Cir. 2021).

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information,” and “refrain from alcohol use.” The district court failed to pronounce or
otherwise incorporate these discretionary conditions into the conditions of supervised
release announced at sentencing. Where, as here, the court fails to announce non-
mandatory conditions of supervised release that are later included in the written judgment,
the remedy is to vacate the sentence and remand for a full resentencing hearing.2
See Singletary, 984 F.3d at 347 & n.4.
Accordingly, we deny the Government’s motion to dismiss the appeal, vacate
Yelizarov’s sentence, and remand for resentencing. This court requires that counsel inform
Yelizarov, in writing, of the right to petition the Supreme Court of the United States for
further review. If Yelizarov 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
Yelizarov. 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.
VACATED AND REMANDED
2 Because the sentence was not properly imposed, we do not address any other
potential issues related to Yelizarov’s sentence at this juncture. See Singletary, 984 F.3d
at 346-47 (declining to consider additional challenges to original sentence).

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