7th Circuit remands to fix sentencing inconsistency in armed robbery conviction

The 7th Circuit Court of Appeals has remanded to the U.S. District Court for Southern District of Indiana a case that convicted an Indianapolis man for his involvement in a string of armed pharmacy robberies. The appellate court concluded a correction was required because both the written and oral sentences imposed terms of supervised release inconsistently.

Dexter “Dex” Fisher was convicted of three counts of robbery and four firearms-related charges in March 2018 for his involvement in a series of pharmacy robberies that occurred along and near Shadeland Avenue on the east and northeast side of Indianapolis in August and September 2014.

Following a two-day trial, Fisher was found guilty of three counts of Hobbs Act robbery, three counts of brandishing a firearm during a crime of violence and one count of being a felon in possession of a firearm. An indictment also sought the forfeiture of any firearm or ammunition used in the charged offenses.

Fisher was orally sentenced to 57 years plus one day in prison, with “concurrent [supervised release] terms of one year for each of Counts 1, 3, 6 and 9.” However, the written judgment differed from the oral sentence, stating that “[u]pon release from imprisonment, [Fisher] shall be on supervised release for a term of 1 year per count, concurrent.”

Four months later, Congress enacted the First Step Act, which amended the way defendants like Fisher are sentenced for convictions under 18 U.S.C. § 924(c).

On appeal, Fisher argued, among other things, that his written sentence was a nullity to the extent it conflicted with the sentence imposed at his sentencing hearing. As a result, he argued those errors required the 7th Circuit to vacate his sentence and remand for a new sentencing hearing at which the First Step Act ought to apply.

The 7th Circuit indeed concluded that the written and oral sentences imposed terms of supervised release that were inconsistent and required correction  in United States of America v. Dexter Fisher, 18-2765.

“The written judgment imposed supervised release ‘for a term of 1 year per count, concurrent.’ Since this section of the written judgment is inconsistent with an unambiguous pronouncement in the oral sentence, the oral sentence controls and the written judgment is a nullity to the extent it conflicts,” Circuit Judge Michael Kanne wrote for the 7th Circuit. “…So, we will remand with specific instructions to amend the written judgment to adopt the language announced at Fisher’s sentencing hearing, imposing terms of supervised release on Counts 1, 3, 6, and 9 only.”

The 7th Circuit therefore remanded to correct “one discrete” inconsistency between the written and oral sentences, which it concluded required that the judge only amend the written judgment to mirror the oral sentence regarding the counts to which a term of supervised release attaches.

“The district court therefore should correct the written judgment without addressing whether the First Step Act would apply and alter Fisher’s term of imprisonment,” the appellate panel concluded, adding that the issue did not require a new sentencing hearing.

Fisher’s convictions, the forfeiture of his firearm and his sentence, except for the terms of supervised release, were all upheld.

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