United States v. Fozard: Appeal-Waiver Boundaries and the Mandatory Remedy for Rogers Errors

Introduction

United States v. Antonio Deon Fozard, No. 22-4679 (4th Cir. June 12, 2025) tackles the intersection of three recurrent features of federal criminal practice:

Plea-agreement appeal waivers,
The Rogers rule that all discretionary supervised-release conditions must be orally pronounced at sentencing, and
The limited, but necessary, review that courts undertake when appointed counsel files an Anders v. California brief asserting no meritorious issues.

Fozard pleaded guilty to conspiracy and substantive health-care fraud. Although his plea agreement waived most appellate rights, the Fourth Circuit ultimately:

Denied the Government’s motion to dismiss under the waiver,
Affirmed his convictions,
Vacated his sentence due to undisclosed supervised-release conditions, and
Remanded for a full resentencing.

Judge Quattlebaum wrote separately to lament what he views as the rigid—and inefficient—application of the circuit’s Rogers jurisprudence.

Summary of the Judgment

Disposition: Convictions affirmed; sentence vacated; case remanded for resentencing.

Key Holdings:

The appeal waiver did not block review of (a) the validity of the guilty plea or (b) a claim that the district court violated United States v. Rogers by failing to orally pronounce discretionary supervised-release conditions.
The Rule 11 plea colloquy, although containing minor omissions, satisfied plain-error review; therefore, the guilty plea stands.
Because the written judgment included 11 “standard” and several “special” supervised-release conditions never pronounced in open court, the Fourth Circuit, per Bullis and Lassiter, was “constrained” to vacate the entire sentence and remand.
Ineffective-assistance claims did not appear conclusively on the record and must be pursued, if at all, under 28 U.S.C. § 2255.

Analysis

Precedents Cited and Their Influence

Anders v. California, 386 U.S. 738 (1967) – Governs appointed counsel’s ability to withdraw when no meritorious issues exist. The court performed its own review and discovered the Rogers error notwithstanding counsel’s Anders submission.
United States v. Taylor Sanders, 88 F.4th 516 (4th Cir. 2023) – Clarified that an appeal waiver does not bar review of the guilty plea’s validity. This authority allowed the panel to inspect the Rule 11 colloquy for plain error.
United States v. King, 91 F.4th 756 (4th Cir. 2024) – Articulated the framework for plain-error review of guilty pleas; guided the court’s affirmance of the plea itself.
United States v. Rogers, 961 F.3d 291 (4th Cir. 2020) – Held that all discretionary supervised-release conditions must be orally pronounced. Rogers errors triggered vacatur here.
United States v. Singletary, 984 F.3d 341 (4th Cir. 2021) – Explained why an appeal waiver that covers “whatever sentence is imposed” does not foreclose appellate review of Rogers errors; used to evade the Government’s waiver argument.
United States v. Bullis, 122 F.4th 107 (4th Cir. 2024) – Required comparison between the oral pronouncement and written judgment; highlighted the defect in Fozard’s sentence.
United States v. Lassiter, 96 F.4th 629 (4th Cir. 2024), cert. denied – Mandated vacatur of the entire sentence, not just supervised-release portions, when Rogers errors are present.
United States v. Freeman, 24 F.4th 320 (4th Cir. 2022) (en banc) & United States v. Faulls, 821 F.3d 502 (4th Cir. 2016) – Dictated the handling of ineffective-assistance claims on direct appeal.

Legal Reasoning of the Court

Appeal-Waiver Construction. Relying on Taylor Sanders and Singletary, the panel cabined the waiver to bar only challenges to convictions and sentences that were legally imposed. Because a Rogers claim attacks whether conditions were “imposed” at all, the waiver could not shield the sentence.
Rule 11 Validity. Applying King, the panel found no plain error in the plea colloquy. Minor omissions did not affect substantial rights because Fozard was competent, informed, and the plea had an independent factual basis.
Identifying the Rogers Error.
- Only two of thirteen “standard” conditions were mentioned aloud.
- Several “special” conditions appeared for the first time in the written judgment.
- No blanket incorporation was made on the record.
Under Bullis, failure to pronounce each discretionary term constitutes legal error requiring de novo correction.
Remedy Selection. Following Lassiter, the court vacated the entire sentence, not merely the unspoken conditions, and remanded for a fresh sentencing hearing.
Ineffective-Assistance Claims. The record did not conclusively show counsel was ineffective; hence, the court declined to reach those allegations on direct appeal.

Potential Impact

The judgment neither forges entirely new doctrine nor overruns existing precedent, yet it crystallizes—and perhaps exacerbates—several trends within Fourth-Circuit practice:

Blueprint for Defence Counsel. Practitioners will cite Fozard to argue that Rogers claims survive even the broadest appeal waivers.
District-Court Sentencing Rituals. Judges must recite all standard and special conditions or expressly incorporate them on the record. The opinion re-emphasizes that even minor lapses trigger wholesale resentencing.
Prosecutorial Drafting. Plea agreements cannot inoculate a sentence from Rogers-based appellate scrutiny; the Government may need to tighten its sentencing colloquies or accept the risk of remand.
Judicial Efficiency Concerns. Judge Quattlebaum’s concurrence underscores internal discomfort: repeated full resentencings for clerical discrepancies consume resources and delay finality, inviting a possible en banc or Supreme Court revisit.

Complex Concepts Simplified

Appeal Waiver: A clause in a plea agreement where the defendant relinquishes some or most appellate rights. Courts enforce waivers but do not allow them to bar challenges that go to whether a sentence was actually “imposed” according to law.
Rule 11 Colloquy: The mandatory in-court dialogue ensuring a defendant’s guilty plea is voluntary, informed, and supported by facts. Omissions create “plain error” only if they affect substantial rights.
Rogers Error: From United States v. Rogers: a sentencing defect occurring when the judge fails to state all discretionary supervised-release conditions orally, leaving them to appear later in writing.
Supervised Release: A form of post-incarceration monitoring. “Standard” conditions apply routinely (e.g., report to probation) but are still discretionary; “special” conditions address individual risks (e.g., mental-health treatment).
Anders Brief: Filed by defense counsel who believes the appeal is meritless. Triggers independent judicial review to safeguard the defendant’s interests.
Plain-Error Review: An appellate standard requiring the defendant to show (1) an error, (2) that is plain, and (3) affects substantial rights; courts may correct if (4) it seriously affects the fairness or integrity of proceedings.
§ 2255 Motion: A federal post-conviction relief mechanism where a prisoner may raise constitutional or jurisdictional errors, including ineffective assistance, with a developed evidentiary record.

Conclusion

United States v. Fozard fortifies the Fourth Circuit’s bright-line stance: when a district court silently inserts supervised-release conditions into the written judgment, the entire sentence must be vacated, even if the defendant waived most appellate rights. By harmonizing (and prioritizing) Rogers and Singletary with plea-agreement doctrine, the panel both preserves defendants’ due-process protections and amplifies the administrative burden on trial courts. Whether the court’s rigorous approach will endure, or whether Judge Quattlebaum’s efficiency concerns will spur doctrinal recalibration, remains to be seen. For now, Fozard stands as a cautionary exemplar: every discretionary condition must be spoken, every waiver has limits, and any deviation invites a full do-over of sentencing.