United States v. Pinon-Saldana ( 2022 )

Case: 21-50536 Document: 00516425553 Page: 1 Date Filed: 08/09/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 9, 2022
No. 21-50536 Lyle W. Cayce
Consolidated with Clerk
No. 21-50546
United States of America,
Plaintiff—Appellee,
versus
Cornelio Pinon-Saldana,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-580
USDC No. 4:18-CR-476
Before Clement, Graves, and Costa, Circuit Judges.
Edith Brown Clement, Circuit Judge:
This appeal begins and ends with United States v. Mejia-Banegas,
32 F.4th 450 (5th Cir. 2022) (per curiam). Before we get there, let’s review
the background here.
Cornelio Pinon-Saldana pleaded guilty to illegally reentering the
United States post-removal in violation of 8 U.S.C. § 1326(a). He was
sentenced to twenty-one months of imprisonment and one year of supervised
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release. During his sentencing hearing, the district court stated that it was
imposing the “standard and mandatory conditions of supervision.” Pinon-
Saldana did not object. The written judgment included the standard risk-
notification condition contained in U.S.S.G. § 5D1.3(c)(12). Pinon-Saldana
subsequently appealed the imposition of this condition, claiming that the
district court plainly erred by impermissibly delegating its judicial authority
to a probation officer. 1
So, what about Mejia-Banegas? In that case, the court unequivocally
held that the same “risk-notification condition does not impermissibly
delegate the court’s judicial authority to the probation officer.” 32 F.4th at
452. Mejia-Banegas, then, is the end of the road here.
The dissent walks a different road. According to the dissent, before
we could address whether the risk-notification condition impermissibly
delegates authority, we must first answer whether the pronouncement at
Pinon-Saldana’s sentencing matches the written judgment. See United States
v. Diggles, 957 F.3d 551, 559–60 (5th Cir. 2020) (en banc). The dissent
believes it does not, and so says we must remand for the district court to fix
the discrepancy.
But the dissent hits two roadblocks. First, nowhere did Pinon-Saldana
ask the question the dissent answers. We generally do not address issues an
appellant did not raise. See Adams v. Unione Mediterranea Di Sicurta, 364 F.3d
646, 653 (5th Cir. 2004) (“Issues not raised or inadequately briefed on appeal
are waived.” (citation omitted)); Johnson v. Sawyer, 120 F.3d 1307, 1315 (5th
Cir. 1997) (“We have held repeatedly that we will not consider issues not
1
Pinon-Saldana also appealed a revocation order in a separate matter, 21-50536.
Although the revocation appeal was consolidated with the present criminal appeal, Pinon-
Saldana failed to brief the revocation matter. Any challenge to the revocation matter has
been waived. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993).
2
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briefed by the parties.” (citations omitted)). That remains true even when
the issue concerns a potential constitutional deficiency. See, e.g., United
States v. Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000) (holding as waived a
claim of ineffective assistance of counsel because it was not properly briefed
by the appellant). Pinon-Saldana did not challenge the inconsistency of his
conditions, and we will not do it for him.
Second, while any inconsistency affects whether Pinon-Saldana could
object to the condition at his sentencing, and thus affects the standard of
review we would apply in reviewing an objection now, see United States v.
Rivas-Estrada, 906 F.3d 346, 348–49 (5th Cir. 2018), Pinon-Saldana’s
objection here fails under any standard of review. Mejia-Banegas makes clear
that imposing a risk-notification condition is not improper delegation.
32 F.4th at 451 (“We conclude that the district court committed no error,
plain or otherwise, by imposing the risk-notification condition.” (emphasis
added)); see also id. at 452 (“Thus, the district court did not err, much less
plainly so, by imposing the risk-notification condition.” (emphasis added)). 2
Mejia-Banegas conclusively resolves Pinon-Saldana’s appeal: The
risk-notification condition is not an impermissible delegation of judicial
authority. Id. at 451. Indeed, since Mejia-Banegas issued, we have granted
unopposed motions for summary affirmance to uphold district court’s
imposition of the same risk-notification condition. See United States v.
2
The breadth of this pronouncement prompted Judge King’s concurrence—and
indicates that the panel read Mejia-Banegas the way we read it here. Judge King wished to
avoid the merits and limit the opinion to a plain error analysis, 32 F.4th at 453, but the panel
majority ruled on the merits anyway. Because she would have waited “for another day” and
“a different vessel” that provided for de novo review to reach the merits, she only
concurred in judgment. Id.
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Manriquez-Nunez, 2022 WL 2256766 (5th Cir. June 23, 2022); United States
v. Aguilar, 2022 WL 1978698 (5th Cir. June 6, 2022).
* * *
AFFIRMED.
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James E. Graves, Jr., Circuit Judge, dissenting:
My distinguished colleagues rest their opinion on United States v.
Mejia-Banegas, which they read to affirmatively foreclose the issue of whether
the district court may delegate the risk-notification condition to a probation
officer. But, before reaching the delegation argument, we must first ensure
that what was pronounced at Cornelio Pinon-Saldana’s sentencing matches
the written judgment. 1 It does not. For that reason, I would vacate and
remand to the district court to conform the written judgment to its oral
pronouncement. I respectfully dissent.
The district court has a constitutional obligation to orally pronounce
a defendant’s sentence. United States v. Omigie, 977 F.3d 397, 406 (5th Cir.
2020) (per curiam). This requirement is “grounded in the defendant’s right
to be present at sentencing, which in turn is derived from the Fifth
Amendment’s Due Process Clause.” Id. (citing United States v. Gagnon, 470
U.S. 522, 526 (1985)). The oral pronouncement requirement applies to all
non-mandatory conditions of supervised release. Id.1
Although Pinon-Saldana does not explicitly raise a pronouncement challenge to
the imposition of the risk-notification condition, I nonetheless find it necessary to address
pronouncement because a district court’s imposition of a condition that it failed to orally
pronounce would be a miscarriage of justice. See, e.g., Silber v. United States, 370 U.S. 717,
718 (1962) (recognizing that, “[i]n exceptional circumstances, especially in criminal cases,
appellate courts, in the public interest, may, of their own motion, notice errors to which no
exception has been taken, if the errors are obvious, or if they otherwise seriously affect the
fairness, integrity, or public reputation of judicial proceedings” (quoting United States v.
Atkinson, 297 U.S. 157, 160 (1936))); United States v. Pineda–Ortuno, 952 F.2d 98, 105 (5th
Cir. 1992) (“Where plain error is apparent, the issue may be raised sua sponte by this court
even though it is not assigned or specified.”); United States v. Montemayor, 703 F.2d 109,
114 n. 7 (5th Cir. 1983) (“An appellate court will not consider sua sponte an argument not
raised in the court below or urged by the litigants except to prevent a miscarriage of
justice.”).
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However, the district court need not recite each condition verbatim to
satisfy this requirement. United States v. Diggles, 957 F.3d 551, 561 (5th Cir.
2020) (en banc). Instead, it may orally adopt a document that lists the
proposed conditions, so long as “the defendant had an opportunity to review
it with counsel” and the district court’s oral adoption is made “when the
defendant is in court.” Id. at 561 n.5. And, importantly, “[r]egardless of the
type of document, the court must ensure” that the defendant reviewed each
document with his attorney. Id. (emphasis added). The “mere existence” of
a document in the record does not satisfy pronouncement requirements. Id.Pinon-Saldana’s written judgment contains seventeen standard
conditions. He only challenges Condition 12 which is the risk-notification
condition. Because this condition is not mandatory under 18 U.S.C. §
3583(d), it must be orally pronounced.
During the brief four-minute sentencing, the district court asked
Pinon-Saldana if he and his attorney had reviewed the Presentence
Investigation Report (PSR). Both replied affirmatively. However, the risk-
notification condition did not appear in the PSR, but instead appeared in a
separate document titled “Sentencing Recommendation.” 2 The district
court never asked Pinon-Saldana or his attorney if they had also reviewed the
Sentencing Recommendation or had any objections to it. Nor did the district
court orally adopt the Sentencing Recommendation. As our en banc court has
stated, the district court must ensure that, “[r]egardless of the type of document
2
This case is distinguishable from Omigie, where “[t]he PSR and sentencing
recommendation were filed into the record under the same document number, indicating
that defense counsel likely received the recommendation along with the PSR.” See 977 F.3d
at 407 n.47 (the docket reveals that the PSR and sentencing recommendation were
uploaded as a single PDF). Here, the Sentencing Recommendation and the PSR were filed
as two separate documents—one of which the district court never referenced in the
sentencing. The docket also includes a notation that “Document available to court only.”
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. . . the defendant had an opportunity to review it with counsel.” Diggles, 957
F.3d at 561 n.5 (emphasis added). And, although the district court stated at
sentencing that it was imposing the standard and mandatory conditions of
release, it did not specifically reference the court’s standing order nor did it
provide Pinon-Saldana with an opportunity to object.
The district court also did not cite Condition 12 verbatim nor did it
reference or orally adopt a document that contained the condition. The only
document referenced during Pinon-Saldana’s sentencing made absolutely no
mention of Condition 12. Thus, the district court failed to orally pronounce
it. Yet, the district court included Condition 12 in the written judgment,
creating a discrepancy between the pronouncement and the written
judgment. When a defendant “had no opportunity at sentencing to consider,
comment on, or object to the special condition,” we review the district
court’s inclusion of that special condition for abuse of discretion. United
States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). A district court
necessarily abuses its discretion in imposing a special condition of supervised
release if the condition in its written judgment conflicts with the condition as
stated during its oral pronouncement. United States v. Vega, 332 F.3d 849,
852 (5th Cir. 2003) (per curiam).
This court has routinely dealt with discrepancies between oral
pronouncements and written judgments. We must first determine whether
the discrepancy here is an ambiguity or a conflict. United States v. Torres-
Aguilar, 352 F.3d 934, 935-36 (5th Cir. 2003). The “crucial factor” that
indicates a conflict exists is where the written judgment “broadens the
restrictions or requirements of supervised release” or “impos[es] a more
burdensome requirement” than the oral pronouncement. United States v.
Flores, 664 F. App’x 395, 398 (5th Cir. 2016) (quoting United States v. Mireles,
471 F.3d 551, 558 (5th Cir. 2006); Bigelow, 462 F.3d at 383). In sum, if
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additional burdens are imposed in the written judgment, existing rights are
extinguished, and a conflict exists.
We have approached this inquiry with surgical precision—a conflict,
even slight, is sufficient to vacate a written judgment and order the district
court to conform it to the oral pronouncement. See Flores, 664 F. App’x at
398 (collecting cases: United States v. Alaniz–Allen, 579 F. App’x. 255, 256
(5th Cir. 2014) (per curiam) (finding conflict where oral pronouncement
prohibited defendant from dating or cohabitating with minors and from
possessing explicit photos of children while written judgment prohibited
dating or cohabitating with anyone with minor children and from possessing
any explicit materials in any medium); United States v. Tang, 718 F.3d 476,
487 (5th Cir. 2013) (per curiam) (finding conflict where oral pronouncement
prohibited defendant from cohabitating with anyone with children under the
age of 18 while written judgment prohibited both cohabitation with or dating
such an individual); United States v. Mudd, 685 F.3d 473, 480 (5th Cir. 2012)
(finding conflict where oral pronouncement merely “recommended . . .
treatment instead of testing” while written judgment required defendant to
submit to testing); Bigelow, 462 F.3d at 383–84 (finding conflict where oral
pronouncement required defendant to merely notify his probation officer
before obtaining any form of identification while the written judgment
required the defendant to obtain prior approval before doing so); United
States v. Wheeler, 322 F.3d 823, 828 (5th Cir. 2003) (per curiam) (finding
conflict where oral pronouncement required defendant to perform 120 hours
of community service within the first year of supervised release while written
judgment required 125 hours within two years); United States v. Ramos, 33 F.
App’x. 704, at *3–4 (5th Cir. 2002) (per curiam) (finding conflict where oral
pronouncement required substance abuse treatment while written judgment
required substance abuse treatment and testing)).
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Turning to the facts of this case. Condition 12 of the judgment states:
If the probation officer determines that the defendant poses a
risk to another person (including an organization), the
probation officer may require the defendant to notify the
person about the risk and the defendant shall comply with that
instruction. The probation officer may contact the person and
confirm that the defendant has notified the person about the
risk.
This condition “broadens the restrictions” of Pinon-Saldana’s
supervised release by mandating that he notify others should his probation
officer determine he is a risk to them. Mireles, 471 F.3d at 558. It also
“impos[es] a more burdensome requirement” on Pinon-Saldana because the
probation officer may follow up with these individuals to confirm that Pinon-
Saldana did notify them—and if not, he will have violated a condition of his
supervised release. Bigelow, 462 F.3d at 383. At its core, Condition 12
imposes additional burdens on Pinon-Saldana’s interactions with others.
These facts highlight that a conflict—not a mere ambiguity—exists between
the oral pronouncement and the written judgment.
And, where there is a conflict, the oral pronouncement controls.
Mireles, 471 F.3d at 557-58. This makes sense because the pronouncement
requirement is designed to ensure that an individual is not deprived of his
“constitutional right to be effectively present” and to “receive sufficient
notice” of a special condition that “would be imposed in the written
judgment.” Flores, 664 F. App’x at 397 (cited approvingly by Diggles). As our
en banc court has stated, “[o]ur caselaw does not generally give the district
court that second chance when it fails to pronounce a condition, even though
conditions have salutary effects for defendants, victims, and the public.”
Diggles, 957 F.3d at 563. The cure for a conflict is to require the district court
to vacate its written judgment and conform it to the oral pronouncement. Id.
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Thus, the imposition of Condition 12—which conflicts with the oral
pronouncement—is an abuse of discretion. Accordingly, I would vacate
Condition 12 3 and remand the case with instructions that the district court
conform the written judgment to the oral pronouncement. 4 Mudd, 685 F.3d
at 480; Bigelow, 462 F.3d at 384. I respectfully dissent.
3
Because Pinon-Saldana only challenges Condition 12, I do not discuss whether
any of the remaining non-mandatory conditions were pronounced at his sentencing or if
their inclusion in the written judgment presents a conflict.
4
My view is not that Pinon-Saldana would have an opportunity to object to the
challenged condition on remand—which the majority argues would be futile under any
standard of review—but that the district court must strike the condition to conform the
oral pronouncement with the written judgment. Diggles, 957 F.3d at 563.
10