“Speak It or Lose It” – Fourth Circuit Re-Affirms the Rogers Rule on Oral Pronouncement of Supervised-Release Conditions in United States v. Kymberly Starr

1. Introduction

The Fourth Circuit’s unpublished decision in United States v. Kymberly Starr, No. 24-4239 (4th Cir. July 29 2025), revisits—and emphatically reinforces—the procedural rule first articulated in United States v. Rogers, 961 F.3d 291 (4th Cir. 2020): a district court must orally pronounce every discretionary (non-mandatory) condition of supervised release, or expressly incorporate them by reference at sentencing, or risk reversal and full resentencing.

Starr, a Maryland tax-return preparer, pleaded guilty to a single count of aiding and assisting in the preparation of false tax returns, 26 U.S.C. § 7206(2). She received a 15-month custodial term plus three years of supervised release containing several special conditions. On direct appeal, the Fourth Circuit affirmed the conviction but vacated the entire sentence after finding “Rogers errors” in the way the district court imposed (or rather failed to orally impose) two of the special conditions: mandatory mental-health treatment and payment of the $100 special assessment. The court also reminded district judges of their obligation to supply an individualized explanation for each special condition under 18 U.S.C. § 3583(d).

2. Summary of the Judgment

Conviction: Affirmed. Rule 11 colloquy was complete; any claim of ineffective assistance should be raised via § 2255.
Sentence: Vacated in its entirety and remanded for resentencing.
Key Holding: Where two special conditions of supervised release (mental-health treatment and the special assessment) appeared only in the written judgment, not in the oral pronouncement and not expressly incorporated by reference, the district court committed reversible Rogers error, entitling the defendant to a full resentencing.
Additional Guidance: On remand, the district court must deliver an “individualized explanation” tying each special condition to the § 3583(d) factors (deterrence, protection of the public, rehabilitation, and proportional liberty deprivation).

3. Analysis

3.1 Precedents Cited and Their Influence

Key authorities: Rogers (2020); Singletary (2021); Cisson (2022); Mathis (2024); Smith (2024); Kemp (2023); Van Donk (2020); and well-established Anders, Rule 11, and plain-error line of cases.

United States v. Rogers, 961 F.3d 291 (4th Cir. 2020) – Foundational precedent mandating that non-mandatory supervised-release conditions must be orally pronounced or expressly adopted.
United States v. Singletary, 984 F.3d 341 (4th Cir. 2021) – Clarified the “heart” of a Rogers claim: it addresses conditions never actually imposed.
United States v. Smith, 117 F.4th 584 (4th Cir. 2024) – Held that mentioning and considering the PSR is not the same as expressly adopting it.
United States v. Mathis, 103 F.4th 193 (4th Cir. 2024) – Distinguished harmless clarifications from material discrepancies.
United States v. Kemp, 88 F.4th 539 (4th Cir. 2023) – Confirmed remedy: full vacatur and resentencing if defendant so requests.
United States v. Van Donk, 961 F.3d 314 (4th Cir. 2020) – Required an “individualized explanation” for each special condition.

The Starr panel leaned heavily on these cases to diagnose two types of Rogers error: (1) improper incorporation (failure to adopt the PSR’s list of conditions), and (2) material discrepancy (conditions in the written judgment that the defendant never heard in court). The precedents dictated not only the finding of error but also the remedy: a complete vacatur of the sentence.

3.2 Legal Reasoning of the Court

Step 1 – Identify Discrepancies: The court compared the transcript (seven conditions) with the written judgment (nine conditions). Mental-health treatment and the $100 assessment were new.
Step 2 – Check for Proper Incorporation: The sentencing judge referenced the PSR in passing but never expressly adopted its proposed conditions, failing the standard set by Smith.
Step 3 – Apply Rogers De Novo Review: Under de novo review for a Rogers claim, the difference was deemed material and reversible. Because the defendant never had the chance to object at sentencing (she could not object to something not said), normal plain-error hurdles do not block relief.
Step 4 – Remedy: Consistent with Kemp, vacatur of the entire sentence and remand for full resentencing is required when requested by the defendant—even if only supervised-release conditions are at issue.

3.3 Potential Impact on Future Litigation

The ruling, while unpublished, signals the Fourth Circuit’s continued intolerance for shortcuts in imposing supervised-release conditions. Key predicted impacts include:

Heightened Scrutiny at Sentencing: Judges must either read each discretionary condition aloud or adopt a written list in explicit terms (“I incorporate by reference the conditions in Paragraph XX of the PSR”).
Defense Strategy: Counsel should preserve objections by requesting clarification whenever conditions are not pronounced or incorporated.
Uniform Practice Guidance: Probation officers and U.S. Attorneys may urge courts to adopt local standing orders or standardized script language to avoid inadvertent Rogers errors.
Individualized Explanation Requirement: The decision underscores that every special condition needs a record-based rationale. Expect more appeals where sentencing courts fail to connect conditions to § 3583(d) factors.
Administrative Clean-Up: Clerks’ offices must reconcile oral pronouncements with written judgments before issuing them, particularly regarding special assessments, treatment mandates, internet bans, etc.

4. Complex Concepts Simplified

Supervised Release: A period of court-supervised monitoring after imprisonment. Think of it as federal “probation.” Conditions can be mandatory (set by statute) or discretionary (added by the judge to address specific risks).
Rogers Error: Named after United States v. Rogers. Occurs when the judge imposes discretionary conditions in writing that were not actually pronounced (or formally incorporated) at the hearing. Remedy: vacatur & resentencing.
Express Incorporation: The simple procedural device that saves a judge from reading every condition aloud: explicitly saying, “I adopt the PSR’s recommended conditions of supervised release.” Implicit references are insufficient.
Plain-Error Review vs. Rogers Review: Usually, unobjected-to errors on appeal require the four-part “plain error” test. However, a Rogers claim is reviewed de novo because the defendant could not object to a condition that was never announced.
§ 3583(d) Factors: The statutory yardstick for special conditions: (1) relate to deterrence, public protection, or rehabilitation; (2) no greater liberty deprivation than necessary; (3) consistent with Sentencing-Commission policy.

5. Conclusion

Starr reinforces the Fourth Circuit’s mantra: if a court wants a supervised-release condition to stick, it must “speak it or lose it.” The opinion harmonizes earlier authority, gives teeth to the express-incorporation requirement, and re-emphasizes individualized explanations under § 3583(d). Practitioners must heed the lesson: a meticulous oral record is not busywork—it is a constitutional imperative safeguarding the defendant’s right to be present, to hear, and to object. Going forward, any silent addition of conditions in the written judgment is likely to invite the same fate: vacatur and a full do-over at sentencing.