United States v. Nash ( 2021 )

Case: 20-20080 Document: 00515721095 Page: 1 Date Filed: 01/26/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 26, 2021
No. 20-20080
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jacob Nash,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-652
Before Owen, Chief Judge, and Graves and Ho, Circuit Judges.
Per Curiam:*
Jacob Nash pleaded guilty to possession of a firearm by a felon and was
sentenced to 42 months’ imprisonment and three years of supervised release.
On appeal, he challenges two conditions of his supervised release. He
complains that the court’s verbal articulation of one of the conditions during
his sentencing hearing differed from what appeared in the court’s written
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-20080 Document: 00515721095 Page: 2 Date Filed: 01/26/2021
No. 20-20080
judgment. He further complains that another condition was not spelled out
by the judge in person during sentencing at all and appeared only in the
written judgment. We affirm on the ground that the district court verbally
adopted both conditions by reference to the written appendix of his
presentence investigation report, and that such verbal adoption was sufficient
under our precedents.
I.
Nash pleaded guilty without a plea agreement to being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
In addition to the mandatory and standard conditions of supervised release,
his presentence investigation report (“PSR”) recommended several special
conditions of supervised release relating to “Substance Abuse Treatment,
Testing, and Abstinence” and “Mental Health Treatment.” These
recommendations appear in the PSR’s appendix and were included in the
district court’s written judgment. With respect to the “Mental Health
Treatment” category, the district court directed Nash to “participate in a
mental health treatment program and follow the rules and regulations of that
program” and to “pay the cost of the program, if financially able.” In
addition, Nash was required to “take all mental-health medications that are
prescribed by [his] treating physician” and to “pay the costs of the
medication, if financially able.”
At sentencing, Nash acknowledged that he had reviewed the PSR with
his counsel and had no objections to any of the conditions of supervised
release found in the appendix. 1 The district court subsequently “adopt[ed]
1
Nash’s counsel objected to only one paragraph of the PSR describing the
circumstances of Nash’s apprehension for the underlying offense, but the district court
noted—and Nash’s counsel agreed—that neither the objection nor any ruling on it would
affect the judge’s sentencing decision.
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the factual findings and guideline applications in the presentence
investigation report” and sentenced Nash to a 42-month term of
imprisonment, followed by a three-year term of supervised release. In his
oral pronouncement, the judge also enumerated the special conditions found
in the appendix. However, he added that the required mental health
treatment program would have “an emphasis on gambling”—an emphasis
that was not expressed in the PSR or the written judgment—and did not
expressly announce the requirement that Nash take the mental health
medications his physician prescribed.
Nash timely appealed, contending that the mental health treatment
and medication conditions found in the written judgment conflict with those
pronounced orally at sentencing and must therefore be stricken from the
written judgment.
II.
Under the Due Process Clause of the Fifth Amendment, a defendant
has the right to be present at sentencing. United States v. Diggles, 957 F.3d
551, 557 (5th Cir. 2020) (en banc), cert. denied, 2020 WL 6551832 (U.S. Nov.
9, 2020) (No. 20-5836). To satisfy this right, the district court must orally
pronounce a defendant’s sentence. Id. at 556–57 (citing United States v.
Martinez, 250 F.3d 941, 942 (5th Cir. 2001) (per curiam)). As a result,
“[i]ncluding a sentence in the written judgment that the judge never
mentioned when the defendant was in the courtroom is ‘tantamount to
sentencing the defendant in absentia.’” Id. at 557 (quoting United States v.
Weathers, 631 F.3d 560, 562 (D.C. Cir. 2011)). Therefore, if the oral
pronouncement at sentencing conflicts with the written judgment, the oral
pronouncement must control. United States v. Grogan, 977 F.3d 348, 352 (5th
Cir. 2020). Nash contends that two conditions in his written judgment
conflict with his orally pronounced sentence.
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We must first determine the appropriate standard that governs
Nash’s claims. For a defendant’s objection to a condition of supervised
release raised for the first time on appeal, the governing standard depends on
whether the defendant had the opportunity to object before the district court.
Id. (citing Diggles, 957 F.3d at 559–60). If the defendant had the opportunity
at sentencing and failed to do so, we review only for plain error, and thus
require the defendant “to show an obvious error that impacted his substantial
rights and seriously affected the fairness, integrity, or reputation of judicial
proceedings.” Diggles, 957 F.3d at 559. If the defendant had no opportunity
to object, we review for abuse of discretion. Id. (citing United States v.
Bigelow, 462 F.3d 378, 381 (5th Cir. 2006)); United States v. Rivas-Estrada,
906 F.3d 346, 348 (5th Cir. 2018).
Nash argues that we must review for abuse of discretion because the
district court did not orally pronounce the challenged special conditions that
appear in the written judgment. He further contends that, because the oral
pronouncement must control when it diverges from the written judgment,
we must vacate and remand. The Government maintains that plain error
review applies because the district court adopted the PSR, including the
appendix, at the sentencing hearing, and therefore Nash had an opportunity
to object. The government further contends that the mental health treatment
program requirement included in the appendix does not conflict with the oral
pronouncement, and that the appendix included the prescribed mental health
medication requirement. Nash would therefore fail at the first prong of plain
error review because there would be no error at all, let alone a clear and
obvious one. See Diggles, 957 F.3d at 560.
Under Diggles, we must decide whether the special conditions are
“required or discretionary under the supervised release statute.” Id. at 559.
That is because a sentencing court must orally pronounce discretionary
conditions of supervised release. Id. at 563. The government concedes that
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the special conditions at issue here are discretionary and had to be
pronounced at sentencing.
We next examine the district court’s pronouncement of the special
conditions. The oral pronouncement requirement does not demand a
“word-for-word recitation of each condition.” Id. at 562. Instead, the
conditions can be enumerated in the PSR, “the centerpiece of sentencing,”
and the sentencing court can pronounce the special conditions by orally
adopting in full the PSR in which they are listed. Grogan, 977 F.3d at 352
(citing Diggles, 957 F.3d at 560). In fact, this method of adopting written
recommendations works to the defendant’s advantage as it “affords earlier
notice than when a defendant hears conditions for the first time when the
judge announces them.” Diggles, 957 F.3d at 561 (citing United States v.
Lewis, 823 F.3d 1075, 1082 (7th Cir. 2016) (asserting that “[t]here were no
surprises in the sentencing hearing related to supervised release” when the
court adopted the conditions recommended in the PSR)).
In Grogan, for example, the defendant received the PSR before
sentencing, reviewed it with his attorney, and made no objection when it was
adopted “in full.” 977 F.3d at 351–53. We held that Diggles was satisfied
because this method gave the defendant notice of the recommended
conditions and an opportunity to object. Id. at 352–53. See also United States
v. Harris, 960 F.3d 689, 696 (5th Cir. 2020) (holding that the district court’s
adoption of the PSR in full provided notice to the defendant).
Grogan does not turn on the fact that the district court verbally
adopted the PSR “in full.” It was sufficient that the defendant there had
“notice of the recommended conditions and an opportunity to object”
because the special conditions in the PSR were set out “exactly as they
appear[ed] in the judgment”; the defendant received the PSR six weeks
before the sentencing hearing and had the opportunity to review it with his
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attorney; and the defendant did not object to the recommended special
conditions in the PSR at sentencing. Id. at 352 (citing Diggles, 957 F.3d at 560
(“When the defendant confirms review of the PSR and sentencing goes
forward, a court’s oral adoption of PSR-recommended conditions gives the
defendant an opportunity to object.”)).
The sentencing court here “adopt[ed] the factual findings and
guideline applications in the presentence investigation report.” As in
Grogan, the special conditions Nash challenges are set out in the PSR exactly
as they appear in the written judgment. The PSR, including its appendix, was
made available to Nash and his counsel on January 10, 2020, nearly six weeks
before his sentencing hearing on February 18, 2020. Nash then confirmed
that he reviewed the PSR with his attorney, and he did not object to any of
the sentencing conditions at the sentencing hearing.
We have previously found similar language as that used by the judge
here sufficient to satisfy Diggles. United States v. Medel-Guadalupe, 979 F.3d
1019, 1025 n.6 (5th Cir. 2020) (finding that notice of special conditions listed
in the PSR appendix was sufficient because “the district court expressly
adopted the factual findings and guideline applications of the PSR which
contained the appendix”). The district court here satisfied the oral
pronouncement requirement when the judge orally adopted at Nash’s
sentencing hearing the “factual findings and guideline applications in the
presentence investigation report.”
Because Nash did not object when the district court orally adopted the
PSR’s special conditions, despite having notice and the opportunity to do so,
plain error review applies.
We find no error, plain or otherwise, because there is no disparity
between the oral pronouncement and the written judgment. The challenged
conditions were included in the appendix, Nash reviewed the special
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conditions with his attorney and failed to object to them before and during
the sentencing hearing, and the district court orally adopted the PSR’s
special conditions.
Nash contends that the written treatment condition differs from the
one orally pronounced at sentencing because the oral pronouncement was
limited to mental health treatment for a gambling problem and the written
condition lacked this limitation. This argument also fails. The oral
pronouncement indicated that the required mental health treatment program
would have “an emphasis on gambling,” but the record does not support the
contention that treatment was to be limited solely to Nash’s gambling
problem. The record reflects the court’s general concern for Nash’s mental
health, including his history with “drugs, . . . gambling, . . . or . . . any of the
other things [Nash] ha[s] had problems with”; Nash “bluntly asked for any
type [of] assistance . . . that would allow him to get his life back on track”;
and he reported emotional trauma stemming from his mother’s murder.
Thus, the written treatment condition was not more burdensome or
expansive than the oral condition, which the judge did not limit strictly to
gambling. Finally, as we have explained, the treatment condition without any
reference to gambling was included in the PSR appendix, which the district
court orally adopted and to which Nash failed to object.
Accordingly, we affirm.
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