United States of America v. Tony Lee Covington

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4630
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY LEE COVINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Mary G. Lewis, District Judge. (3:19-cr-00421-MGL-1)
Submitted: April 3, 2023 Decided: April 11, 2023
Before HARRIS and RUSHING, Circuit Judges, and MOTZ, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Jeremy A. Thompson, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Corey F.
Ellis, United States Attorney, Columbia, South Carolina, Amy F. Bower, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tony Lee Covington pled guilty, pursuant to a written plea agreement, to conspiracy
to commit wire fraud, in violation of 18 U.S.C. § 1349. The district court sentenced him
to 51 months’ imprisonment and a three-year term of supervised release. On appeal,
Covington asserts that one of the discretionary conditions of supervised release in his
written judgment is inconsistent with the district court’s oral pronouncement of that
condition at sentencing. For the reasons that follow, we affirm.
“[A] district court must orally pronounce all non-mandatory conditions of
supervised release at the sentencing hearing.” United States v. Singletary, 984 F.3d 341,
344 (4th Cir. 2021). “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. (citing United States v. Rogers, 961 F.3d
291, 300-01 (4th Cir. 2020)). To “satisfy its obligation to orally pronounce discretionary
conditions,” a district court may do so “through incorporation—by incorporating, for
instance, all Guidelines ‘standard’ conditions when it pronounces a supervised-release
sentence, and then detailing those conditions in the written judgment.” Rogers, 961 F.3d
at 299. “We review the consistency of [a defendant’s] oral sentence and the written
judgment de novo.” Id. at 296; see United States v. Cisson, 33 F.4th 185, 192-93 (4th Cir.
2022).
When imposing the conditions of supervised release at sentencing, the district court
stated, “Within 72 hours of release from the custody of the Bureau of Prisons, the defendant
shall report in person to the probation office in the district to which the defendant is

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released.” (J.A. 56).* Immediately thereafter, the district court ordered Covington to
“comply with the mandatory and standard conditions of supervision outlined in 18 U.S.C.
[§] 3583(d) and [U.S. Sentencing Guidelines Manual §] 5D1.3(c).” (J.A. 56). The district
court’s subsequent written judgment included the 13 standard conditions of supervised
release in USSG § 5D1.3(c), p.s., including the following condition: “You must report to
the probation office in the federal judicial district where you are authorized to reside within
72 hours of your release from imprisonment, unless the probation officer instructs you to
report to a different probation office or within a different time frame.” (J.A. 63).
On appeal, Covington argues that the district court committed Rogers error because
the description of the reporting condition in the written judgment materially differed from
the court’s oral pronouncement of that condition at sentencing. To be sure, a material
discrepancy between a discretionary condition as pronounced and as detailed in the written
judgment may constitute Rogers error. See Cisson, 33 F.4th at 194 & n.6. However,
Covington fails to demonstrate a reversible inconsistency between the oral sentence and
the written judgment amounting to Rogers error. Although the district court at sentencing
ordered Covington to report to the district in which he was released, the court also
incorporated the reporting condition in USSG § 5D1.3(c), p.s., leaving ambiguous where
Covington was required to report upon his release from prison. “[W]here the precise
contours of an oral sentence are ambiguous, we may look to the written judgment to clarify
the district court’s intent. Rogers, 961 F.3d at 299 (citing United States v. Osborne, 345
* “J.A.” refers to the joint appendix filed by the parties in this appeal.

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F.3d 281, 283 n.1 (4th Cir. 2003)). We are satisfied that the written judgment’s inclusion
of the reporting condition in USSG § 5D1.3(c)(1), p.s., dispels the ambiguity in the district
court’s oral pronouncement and confirms the court’s intent to require Covington to report
to the probation office in the district where he is authorized to reside.
Accordingly, we affirm the criminal judgment. 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

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