Court Affirms Firearm Guideline Enhancement, Oral Announcement of SR Conditions

US v. Cisson: Cisson pleaded guilty to being a felon in possession of a firearm. After being sentenced to a term of 100 months in prison and successfully vacating that sentence on appeal, Cisson faced resentencing. The probation officer prepared a revised presentence investigation report and recommended a Guideline enhancement for possession of the firearm in connection with another felony offense, the passing of counterfeit money. The district court applied the enhancement, but sustained a couple of Cisson’s other objections, and imposed a Guideline sentence of 62 months.

On appeal, the Fourth Circuit affirmed Cisson’s sentence in all aspects. Initially, Cisson’s only argument on appeal was that the in-connection-with enhancement should not have applied.  Reviewing purely as a legal issue (because the district court did not make any specific factual findings), the court concluded that it did not need to reach the issue as any error was harmless, as the district court explained that it would have applied imposed the same sentence regardless of the enhancement and Cisson offered “no argument as to why his sentence would be unreasonable if the enhancement provision issue had been decided in his favor.”

Prior to oral argument, Cisson filed a 28(j) letter arguing, for the first time, that the district court had violated the Fourth Circuit’s decision in Rogers (which was decided after briefing was concluded) by orally describing a condition of supervised release it imposed in a way that different from the written judgment and by not “adequately announc[ing] the discretionary conditions that it later imposed in its written judgment.” The court first concluded that raising the issues first in a 28(j) letter was sufficient on the particular facts of this case, given that Rogers (and cases developing upon it) wasn’t decided until after briefing was complete. As a result, Cisson could not have been said to have abandoned the issues. Litigants, the court concluded, were not expected to be “like fortune tellers peering into their crystal balls” and “predict what we might hold in future cases.” The court also held that review was de novo, rather than for plain error, because the conditions at issue had no effect until announced by the district court (or in the judgment), regardless of whether they were mentioned in the PSR. Ultimately, however, the court concluded that there were no Rogers errors made by the district court.