UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 23-4062

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MEDARD ULYSSE, a/k/a Jay,

Defendant - Appellant.

No. 23-4071

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MEDARD ULYSSE,

Defendant - Appellant.

Appeals from the United States District Court for the District of Maryland, at Baltimore. 

Richard D. Bennett, Senior District Judge. (1:21-cr-00054-RDB-1; 1:22-cr-00335-

RDB-1)

Submitted: July 18, 2024 Decided: August 20, 2024

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Before RICHARDSON and RUSHING, Circuit Judges, and MOTZ, Senior Circuit Judge.

Dismissed in part, affirmed in part, vacated in part, and remanded by unpublished per 

curiam opinion.

ON BRIEF: Richard B. Bardos, SCHULMAN, HERSHFIELD & GILDEN, P. A., 

Baltimore, Maryland, for Appellant. Sean Richard Delaney, Assistant United States 

Attorney, Christine Oi Jyn Goo, Special Assistant United States Attorney, 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Unpublished opinions are not binding precedent in this circuit.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: 

Medard Ulysse pled guilty, pursuant to a written plea agreement, to conspiracy to 

commit mail fraud, in violation of 18 U.S.C. §§ 1341, 1349, and wire fraud, in violation of 

18 U.S.C. § 1343. The district court sentenced Ulysse to a total of 108 months’ 

imprisonment, followed by three years’ supervised release. Ulysse’s counsel has filed a 

brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no 

meritorious grounds for appeal but questioning whether the district court was biased by 

anger because Ulysse, who has been represented by appointed counsel throughout the 

proceedings, attempted to retain counsel approximately five weeks before his scheduled 

trial. Although he was advised of his right to do so, Ulysse has not filed a supplemental 

pro se brief. The Government moves to dismiss the appeals as barred by the appeal waiver 

included in Ulysse’s plea agreement.1

Where, as here, the Government seeks to enforce an appeal waiver and the defendant 

has not alleged a breach of the plea agreement, we will enforce the waiver if it is valid and 

1 The Government states in its motion that it “moves to dismiss this appeal as 

untimely and because . . . Ulysse waived the right to appeal his conviction and sentence in 

his plea agreement,” but it fails to develop any argument related to the timeliness of the 

appeals. Although we generally “must dismiss” “[w]hen the Government promptly 

invokes” the untimeliness of a criminal appeal, United States v. Oliver, 878 F.3d 120, 123 

(4th Cir. 2017), the Government’s “passing shot” at the timeliness issue is insufficient to 

properly raise it, Short v. Hartman, 87 F.4th 593, 615 (4th Cir. 2023) (“A party waives an 

argument by failing to present it in its opening brief or by failing to develop its argument—

even if its brief takes a passing shot at the issue.” (internal quotation marks omitted)). 

Because the appeal period in a criminal case is a nonjurisdictional claims-processing rule

that we decline to enforce sua sponte absent “extraordinary circumstances,” Oliver, 878 

F.3d at 122, we consider only the appeal waiver as a ground for dismissal. 

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the issue raised on appeal falls within its scope. United States v. Boutcher, 998 F.3d 603, 

608 (4th Cir. 2021). Our review of the record leads us to conclude that the appeal waiver 

is valid and enforceable as to all issues within its scope. We therefore grant in part the 

Government’s motion to dismiss.

We have identified a “narrow class of claims” that may be raised despite a valid 

general appeal waiver. United States v. Lemaster, 403 F.3d 216, 220 n.2 (4th Cir. 2005). 

To the extent Ulysse’s allegation of judicial bias asserts that the court violated his right to 

due process at sentencing, “to prevail in a deprivation of due process claim, a defendant 

must show a level of bias that made fair judgment impossible.” Rowsey v. Lee, 327 F.3d 

335, 341 (4th Cir. 2003) (internal quotation marks omitted). “[J]udicial remarks during the 

course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, 

or their cases, ordinarily do not support a bias or partiality challenge.” Liteky v. United 

States, 510 U.S. 540, 555 (1994). Thus, absent reliance on an impermissible factor such 

as race or national origin, United States v. Bakker, 925 F.2d 728, 740 (4th Cir. 1991), or 

some personal stake in the litigation, see 28 U.S.C. § 455(b)(2)-(5), negative opinions 

formed throughout criminal proceedings “do not constitute a basis for [a finding of] bias 

. . . unless they display a deep-seated . . . antagonism that would make fair judgment 

impossible,” Liteky, 510 U.S. at 555. We discern no hostility, let alone “deep-seated . . .

antagonism,” id., to support a claim of judicial bias.

Although not raised by counsel, our review of the record in accordance with Anders

identified a meritorious issue that falls outside the waiver’s scope. A district court is 

required to orally pronounce at sentencing all discretionary conditions of supervised 

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release. United States v. Rogers, 961 F.3d 291, 296-97 (4th Cir. 2020). This requirement 

“is a critical part of the defendant’s right to be present at sentencing,” id. at 300 (internal 

quotation marks omitted), and ensures the defendant an opportunity to challenge 

unwarranted conditions before they are imposed, id. at 298. Because “the heart of a Rogers

claim is that discretionary conditions appearing for the first time in a written judgment in 

fact have not been imposed on the defendant,” this issue falls outside the scope of the 

appeal waiver. United States v. Singletary, 984 F.3d 341, 345 (4th Cir. 2021) (internal 

quotation marks omitted). 

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). “[T]he written judgment does not have to 

match perfectly with the oral pronouncement.” United States v. Mathis, 103 F.4th 193, 

197 (4th Cir. 2024); see Rogers, 961 F.3d at 299 (explaining that “so long as the defendant 

is informed orally that a certain set of conditions will be imposed on his supervised release, 

. . . then a later-issued written judgment that details those conditions may be construed 

fairly as a clarification of an otherwise vague oral pronouncement” (internal quotation 

marks omitted)). However, “a material discrepancy between a discretionary condition as 

pronounced and as detailed in a written judgment may constitute Rogers error.” Mathis, 

103 F.4th at 197 (internal quotation marks omitted). 

Here, the written judgments contain several discretionary conditions of supervised 

release that are impermissibly inconsistent with the district court’s oral pronouncement. 

See Mathis, 103 F.4th at 198 (“[U]nder our Rogers-Singletary jurisprudence, one rotten 

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apple spoils the whole barrel.”). For example, the court instructed Ulysse that he would be 

required to “abide by the probation officer’s notification to abstain from . . . conduct” that 

posed a risk to another person; the written judgments add that if the probation officer were 

to “determine[ Ulysse posed] a risk to another person (including an organization), the 

probation officer may require [him] to notify the person about the risk and [Ulysse] must 

comply with that instruction. The probation officer may contact the person and confirm 

that [Ulysse had] notified the person about the risk.” The court announced that Ulysse 

“must not possess or control any substances without a valid prescription”; the written 

judgments expand this condition by adding the requirement that if Ulysse were to have 

such a prescription, he “must disclose the prescription information to the probation officer 

and follow the instructions on the prescription.” And although the court orally pronounced 

that Ulysse “must make every effort to obtain full-time employment,” the written 

judgments also include unannounced notification requirements if Ulysse were to change 

job positions or responsibilities. 

The written judgments include a number of conditions of supervision that the district 

court did not completely announce at sentencing.2 Because some of the conditions 

included in the written judgments added additional obligations, rather than simply 

clarifying orally pronounced conditions, this constitutes reversible Rogers error. See 

2 Although the discretionary conditions included in the criminal judgments 

replicated the Probation Office’s recommended conditions of supervision, the district court 

did not expressly incorporate those recommended conditions at sentencing. See Rogers, 

961 F.3d at 300. 

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Mathis, 103 F.4th at 198. In light of this error, “[o]ur precedent leaves no choice” but to 

follow the “clear rule” that “[w]hen a district court fails to orally pronounce discretionary 

conditions of supervised release[,] we vacate the entire sentence and remand for the district 

court to resentence the defendant.” Id. (internal quotation marks omitted). 

In accordance with Anders, we have reviewed the entire record in this case and have 

found no other meritorious grounds for appeal that would fall outside the waiver’s scope. 

We thus affirm Ulysse’s convictions and dismiss the appeals as to any issues falling within 

the scope of the appeal waiver, but we vacate his sentences and remand for resentencing. 

This court requires that counsel inform Ulysse, in writing, of the right to petition the 

Supreme Court of the United States for further review. If Ulysse 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 Ulysse. 

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. 

DISMISSED IN PART, 

AFFIRMED IN PART, 

VACATED IN PART, 

AND REMANDED

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