Criminal – Full court refuses to rehear Rogers-Singletary error case

Where a member of the court requested a poll for en banc review of a case involving a Rogers-Singletary error, but the poll failed to produce a majority of judges in regular active service and not disqualified who voted in favor of rehearing en banc, the petition was denied.

Background

A member of the court requested a poll for en banc review, but the poll failed to produce a majority of judges in regular active service and not disqualified who voted in favor of rehearing en banc. Chief Judge Diaz and Judges Wilkinson, King, Gregory, Agee, Wynn, Thacker, Harris, Richardson, Quattlebaum, Heytens, Benjamin and Berner voted to deny rehearing en banc. Judges Niemeyer and Rushing voted to grant rehearing en banc.

Judge Wynn wrote a statement respecting the denial of rehearing en banc. Judge Richardson, with whom Chief Judge Diaz, and Judges Wilkinson, Niemeyer, King, Agee,

Quattlebaum, and Rushing joined, wrote a statement respecting the denial of rehearing en banc.

Petition for rehearing en banc denied.

Wynn

Wynn, J., respecting the denial of rehearing en banc:

Judge Richardson’s well-written opinion attached to this order does not oppose the denial of en banc review—indeed, it could not. He, along with nearly all the judges who joined his separate writing, voted against rehearing the case en banc.

Yet they collectively identify a serious and compelling concern, one that lies well within this court’s power to correct by granting such review. That inconsistency—articulating a forceful basis for en banc review while simultaneously voting to deny it—is one I find difficult to reconcile.

Richardson

Richardson, J., with whom Diaz, Wilkinson, Niemeyer, King, Agee, Quattlebaum and Rushing join, respecting the denial of rehearing en banc:

Our Court has long recognized that a district court errs when the written judgment includes a punishment that is different than what was orally pronounced. But it is important to consider why a discrepancy between a written judgment and an oral pronouncement matters.

It’s because the written judgment is the final word on a defendant’s sentence. Put differently, the written sentencing judgment—not the oral pronouncement—binds. As I explain, this understanding of the primacy of the written judgment finds support in relevant principles of law and history.

Unfortunately, our Court has long suggested the opposite: that the oral pronouncement of a defendant’s sentence “controls” over the written judgment. Other courts of appeals have suggested the same. We recently revived this erroneous idea in United States v. Rogers. 961 F.3d 291, 296 (4th Cir. 2020). And the next year in United States v. Singletary, 984 F.3d 341 (4th Cir. 2021), we began to read the idea for all its worth.

The approach we took in Singletary has led to a flood of appeals by defendants seeking to vacate their otherwise-valid sentences because of minor discrepancies between the oral pronouncement of a sentence and the written judgment. In case after case, we have slowly expanded the reach of our so-called Rogers-Singletary doctrine.

Our caselaw transforms a defendant’s right to be present at sentencing into a tangled web of inconsistencies that calls into question heaps of otherwise-valid judgments. Rather than continuing to follow our earlier (unwise) suggestion that the oral sentencing pronouncement controls over the written judgment, we should recognize the centrality of the written judgment. The written judgment is the sentence. It is time we said so.

Despite the troubling result reached here, I am concerned that this case is not a good vehicle for en banc review. My purpose in writing this statement is not to quarrel with the outcome in this case but to raise broader concerns with the state of our caselaw.

United States v. McLaurin, Case No. 24-4261, April 9, 2026. VLW 026-2-121. 12 pp.

Full-Text Opinion

VLW 026-2-121
Virginia Lawyers Weekly