UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-4674

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MOHAMMED HAKIM UPCHURCH,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at 

Raleigh. Louise W. Flanagan, District Judge. (5:19-cr-00006-FL-1)

Submitted: December 28, 2022 Decided: June 23, 2023

Before GREGORY, Chief Judge, and WILKINSON and RUSHING, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

ON BRIEF: G. Alan DuBois, Federal Public Defender, Andrew DeSimone, Assistant 

Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, 

North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, Lucy Partain 

Brown, Assistant United States Attorney, David A. Bragdon, Assistant United States 

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, 

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Mohammed Hakim Upchurch pled guilty, without a written plea agreement, to 

possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 

924(a)(2).1

 The district court sentenced Upchurch to 60 months’ imprisonment followed 

by 3 years of supervised release. Upchurch appealed, and we granted the Government’s 

unopposed motion to vacate the district court’s judgment and remand Upchurch’s case to 

the district court for resentencing in light of United States v. Rogers, 961 F.3d 291 (4th Cir.

2020), and United States v. Singletary, 984 F.3d 341 (4th Cir. 2021). United States v. 

Upchurch, No. 20-4014 (4th Cir. Aug. 12, 2021) (unpublished order). The district court 

resentenced Upchurch to 57 months’ imprisonment and 3 years of supervised release, and 

Upchurch now appeals the amended judgment.

In the instant appeal, Upchurch argues that the district court erred by pronouncing

at resentencing the special condition of supervised release that he submit to certain searches 

by probation or law enforcement upon reasonable suspicion, which differs from the written 

amended judgment’s special condition requiring him to consent to suspicionless searches. 

The Government argues that the reasonable suspicion requirement orally imposed by the 

district court does not apply to searches by any probation officer in the lawful discharge of 

1 Section 924(a)(2) was amended and no longer provides the penalty for § 922(g) 

convictions; the new penalty provision in 18 U.S.C. § 924(a)(8) sets forth a statutory 

maximum sentence of 15 years’ imprisonment for a § 922(g) offense. See Bipartisan Safer 

Communities Act, Pub. L. No. 117-159, § 12004(c), 136 Stat. 1313, 1329 (2022). The 15-

year statutory maximum does not apply in this case, however, because Upchurch’s offense 

was committed before the June 25, 2022, amendment to the statute.

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the officer’s supervision functions, which matches the language in the written amended 

judgment. We vacate Upchurch’s sentence and remand to the district court for a second 

resentencing. 

We review de novo whether the sentence imposed in the written judgment is 

consistent with the district court’s oral pronouncement of the sentence. See United States 

v. Cisson, 33 F.4th 185, 193 (4th Cir. 2022). Based on the inconsistency between the oral 

pronouncement and written amended judgment, the district court did not comply with the 

rule that “all non-mandatory conditions of supervised release must be announced at a 

defendant’s sentencing hearing.” Rogers, 961 F.3d at 296 (holding that district court has a 

“duty to orally pronounce any discretionary conditions [of supervised release] included as 

part of a defendant’s sentence”). 

Regarding the Government’s explanation of the inconsistency, although part of the 

district court’s oral pronouncement of the special condition matches the written condition 

in the amended judgment, the district court’s reasonable suspicion requirement for searches 

“concerning a violation of a condition of supervised release or unlawful conduct” is absent 

from the amended judgment. (J.A. 80).

2

 Rather, the amended judgment does not require 

reasonable suspicion for any search of Upchurch, his location, or his belongings by a 

probation or law enforcement officer during Upchurch’s supervised release. Compare J.A. 

80 with J.A. 90. Where, as here, the district court’s oral pronouncement is inconsistent 

with a discretionary condition of supervised release that is later included in the written 

2

 “J.A.” refers to the joint appendix. 

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judgment, the sentence constitutes reversible Rogers error, and the defendant’s sentence 

must be vacated in its entirety and the case remanded for resentencing. See Singletary, 984 

F.3d at 346 & n.4; cf. Cisson, 33 F.4th at 194 n.6 (noting where government failed to offer 

explanation of alleged inconsistency between district court’s oral pronouncement of 

discretionary condition and written condition in judgment required vacating sentence and 

remanding for resentencing).

3

Accordingly, we vacate Upchurch’s sentence and remand for a second resentencing

in accordance with Rogers and Singletary. In light of the impending conclusion of 

Upchurch’s term of incarceration, the mandate shall issue forthwith so the district court 

may proceed with resentencing without delay. 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

3 This Court recently decided United States v. Locklear, No. 21-4161, 2023 WL 

2300394 (4th Cir. Mar. 1, 2023), and held that, in the context of an unobjected to 

discrepancy between the written judgment and oral pronouncement of a condition of 

supervised release, a limited remedy of remand to correct the judgment is appropriate, id.

at *2. Unlike in Locklear, here, the Government attempts to explain the inconsistency 

between the district court’s oral pronouncement and written amended judgment, and 

Upchurch counters the Government’s explanation. Therefore, the facts of this case do not 

support the application of a limited remand remedy.

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