Virginia Lawyers Weekly VA Lawyers Weekly
Where the defendant argued the district court erred by imposing a sentencing enhancement for use or possession of a firearm or ammunition in connection with another felony offense, but the court explained why it would have imposed the same sentence without the enhancement, the alleged error was harmless.
Background
In October 2016, Robert Christopher Cisson — a felon — used counterfeit bills to purchase a pistol and ammunition. A federal grand jury subsequently indicted him on possession of a firearm and ammunition by a convicted felon and passing counterfeit money. Cisson pled guilty to possessing a firearm and ammunition. In his original appellate briefing, Cisson argued that the district court erred in applying an enhancement to his sentence under § 2K2.1(b)(6)(B) of the sentencing guidelines.
Cisson then filed a Rule 28(j) letter arguing that the district court had also committed two errors contrary to United States v. Rogers, 961 F.3d 291 (4th Cir. 2020). The court requested and received supplemental briefs from the parties on whether it should reach those late-raised claims and if so, whether the district court committed Rogers errors.
Sentencing
Section 2K2.1(b)(6)(B) states that a district court may increase a defendant’s offense level by four if the defendant “used or possessed any firearm or ammunition in connection with another felony offense.” Cisson’s sole challenge to the enhancement is that his possession of the firearm was not “in connection with” the counterfeit money offense. But the court ultimately need not reach the merits of the arguments. Even if the district court erred in applying the § 2K2.1(b)(6)(B) enhancement, any such error would be harmless.
If a district court states would have reached the same result irrespective of the error, and explained why, the error is harmless. Here the district court did just that. Moreover, Cisson offers no argument as to why his sentence would be unreasonable if the enhancement provision issue had been decided in his favor, merely asserting at the end of his brief that his sentence was “unreasonable based on the failure of the district court to adequately explain its sentence and its relation to the factors in § 3553(a).” That blanket assertion is insufficient to avoid waiving the argument. And in any event, the district court did adequately explain the sentence and its relation to the § 3553(a) factors.
‘Rogers’ claims
In this circuit, litigants ordinarily waive claims by raising them for the first time in a Rule 28(j) letter. However, the court may “deviate from this rule in appropriate circumstances.” One of those circumstances occurs “when an intervening decision of this Court or the Supreme Court affects precedent relevant to a case pending on direct appeal.” Here, this court did not decide Rogers and its progeny until after Cisson and the government had already completed their original briefing in this appeal.
The government nevertheless argues that, before this court decided Rogers, no precedent directly prevented Cisson from making that argument, and so a Rogers claim must have always been available to him. The court cannot expect litigants, like fortunetellers peering into their crystal balls, to predict what it might hold in future cases. And so when the Supreme Court or this court decides a case that affects precedent relevant to a case pending on direct appeal, it cannot hold that a litigant has waived an argument based on that new case merely because he previously failed to argue for the holding of that case himself.
Cisson bases his first Rogers claim not on a complete failure to announce a discretionary condition but rather on an alleged inconsistency between the descriptions of a condition in his oral sentence and in his written judgment. The government argues there is no inconsistency, explaining that the district to which a defendant is released is the district in which he is authorized to reside. Cisson fails to respond in any way to this proffered explanation. Accordingly the court holds there is no inconsistency between the descriptions of the condition in the oral sentence and written judgment, and thus no Rogers error.
Cisson also maintains that the district court failed to adequately announce his discretionary conditions. But this court made clear in Rogers that a court may satisfy its requirement to announce discretionary conditions “by incorporating . . . all Guidelines ‘standard’ conditions when it pronounces a supervised-release sentence.” That is exactly what the district court did here by stating that it would impose the “standard” conditions of supervised release.
Affirmed.
United States v. Cisson, Case No. 19-4031, May 5, 2022. 4th Cir. (Motz), from DSC at Anderson (Childs). Erica Marie Soderdahl for Appellant. Benjamin Neale Garner for Appellee. VLW 022-2-117. 17 pp.
