United States v. Rosie Diggles ( 2020 )

Case: 18-40521 Document: 00515398875 Page: 1 Date Filed: 04/29/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-40521 April 29, 2020
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
ROSIE DIGGLES; WALTER DIGGLES; ANITA DIGGLES,
Defendants - Appellants
Appeals from the United States District Court
for the Eastern District of Texas
Before OWEN, Chief Judge, and HIGGINBOTHAM, JONES, SMITH,
STEWART, DENNIS, ELROD, SOUTHWICK, HAYNES, GRAVES,
HIGGINSON, COSTA, WILLETT, HO, DUNCAN, ENGELHARDT, and
OLDHAM, Circuit Judges.
GREGG COSTA, Circuit Judge:
District courts in the Fifth Circuit sentence more than 15,000 defendants
a year. U.S. SENTENCING COMM’N, STATISTICAL INFORMATION PACKET: FIFTH
CIRCUIT, FISCAL YEAR 2018, at 3 tbl.1 (17,658 sentenced); 2017, at 2 tbl.1
(16,712 sentenced); 2016, at 2 tbl.1 (16,074 sentenced); 2015, at 2 tbl.1 (16,344
sentenced). About 90% of those defendants are sentenced to prison. Id. FISCAL
YEAR 2018, at 9 tbl.5 (noting that 91.9% of defendants received some prison
term as part of their sentence). And most defendants sentenced to prison will
be on supervised release when they get out. U.S. SENTENCING COMM’N,
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OVERVIEW OF FEDERAL CRIMINAL CASES, FISCAL YEAR 2018, at 10 (74.7% of all
defendants serving time and 84.3% of nonimmigration defendants); 2017, at 6
(83.8% of all defendants serving time and 94.1% of nonimmigration
defendants).
Supervised release “assist[s] individuals in their transition to
community life.” United States v. Johnson, 529 U.S. 53, 59 (2000). To promote
that reintegration and protect the public from further crimes, courts often
impose conditions on a releasee. See Mont v. United States, 139 S. Ct. 1826,
1833, 1835 (2019). Examples include drug testing, mental health treatment,
job training, community service, and sex offender registration. See id. at 1835.
Although the goal of such conditions is to help the releasee lead a productive
and crime-free life, failure to comply can result in a return to a prison.
Consequently, these important features of the federal criminal justice system
are often the subject of appeals.
We heard this case en banc to resolve inconsistency in our caselaw on
one common issue: How does the requirement that a court pronounce its
sentence in the presence of the defendant apply to supervision conditions?
I.
A jury convicted Rosie, Walter, and Anita Diggles of fraud in connection
with the receipt of hurricane-relief funds. They assert that the evidence did
not support their convictions. Adopting the original panel’s opinion on the
sufficiency challenges, we disagree and affirm the convictions. United States
v. Diggles, 928 F.3d 380, 387–91 (5th Cir. 2019).
Rosie Diggles also challenges her 54-month prison sentence, arguing
that the district court should not have applied a Sentencing Guidelines
enhancement for making a misrepresentation “on behalf of a charitable,
educational, religious, or political organization, or a government agency.”
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U.S.S.G. § 2B1.1(b)(9)(A). We again agree with the panel opinion and affirm
her custodial sentence. 928 F.3d at 391–92.
II.
That brings us to the reason for full-court review. The district court
required supervised release for each defendant and ordered Walter to pay
$1.33 million in restitution, with Rosie and Anita jointly and severally liable
for just over $970,000. The judgments include four conditions of supervised
release related to the defendants’ financial obligations. They require the
defendants to:
1. “pay any financial penalty that is imposed by the judgment”;
2. “provide the probation officer with access to any requested financial
information for purposes of monitoring restitution payments and
employment”;
3. “not incur new credit charges or open additional lines of credit without
the approval of the probation officer” until full payment is made; and
4. “not participate in any form of gambling” until full payment is made.
The defendants object that the district court did not recite those
conditions when imposing their sentences. Instead, taking Walter’s sentencing
as an example, the judge said:
In addition, defendant must comply with the mandatory and
special conditions and instructions set out in the revised
presentence report.
Looking at the Revised Presentence Investigation Report,
those conditions are found at this Document 149 at page 27 and
28. Now, the title there is “Supervision Conditions
Recommendation.” Those are no longer just a recommendation;
those are the conditions and special instructions that I have
adopted.
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Here is the part of the Presentence Investigation Report (PSR) that the
court adopted 1:
Despite the judge’s express adoption of the PSR’s recommendations, the
defendants have some precedent to stand on in arguing it was not enough. We
1 This excerpt comes from the end of the revised PSR. Proposed supervision conditions
often appear separately in the Probation Office’s sentencing recommendation. District courts
differ on whether they disclose that document to the parties. See Fed. R. Crim. P. 32(e)(3)
(permitting a court to “direct the probation officer not to disclose to anyone other than the
court the officer’s recommendation on the sentence”). Of course, the adoption practice we
discuss in this opinion works only if the defendant received the adopted document. So
conditions cannot be incorporated by reference when they are listed only in a PSR
recommendation that has not been disclosed to the defendant.
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recently vacated supervised release conditions when the sentencing judge told
the defendant that the conditions recommended in the PSR would be imposed
instead of reciting them one-by-one. United States v. Rivas-Estrada, 906 F.3d
346, 350–51 (5th Cir. 2018). Other caselaw gives district judges more leeway
in adopting written recommendations. For instance, we upheld conditions
when, during sentencing, the court admitted a Probation Office memo
recommending conditions without discussing them further. United States v.
Rouland, 726 F.3d 728, 734 (5th Cir. 2013) (applying plain-error review
because the exhibit provided notice); see also United States v. Al Haj, 731 F.
App’x 377, 379 (5th Cir. 2018) (per curiam) (finding no error when the
defendant signed a document listing conditions). We agreed to hear this case
en banc to reconcile our caselaw, which creates a granular distinction at best
and a backwards one at worst. After all, a PSR’s list of proposed conditions
provides much earlier notice than an exhibit given to the parties for the first
time at sentencing. See Diggles, 928 F.3d at 393.
A.
The district court must orally pronounce a sentence to respect the
defendant’s right to be present for sentencing. See United States v. Martinez,
250 F.3d 941, 942 (5th Cir. 2001) (per curiam); see also FED. R. CRIM. P.
43(a)(3). If the in-court pronouncement differs from the judgment that later
issues, what the judge said at sentencing controls. United States v. Kindrick,
576 F.2d 675, 676–77, 677 n.1 (5th Cir. 1978) (collecting cases). This
pronouncement rule applies to some supervised release conditions, but not all
of them. See United States v. Torres-Aguilar, 352 F.3d 934, 936–38 (5th Cir.
2003) (per curiam); Martinez, 250 F.3d at 942. So before deciding whether
adoption of written recommended conditions counts as pronouncement, we
address when pronouncement is required.
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Here too our law is confusing. Pronouncement is not required for what
the Sentencing Guidelines call “mandatory” and “standard” conditions. See
U.S.S.G. § 5D1.3(a), (c); Torres-Aguilar, 352 F.3d at 938. It is, however,
required for “discretionary” and “special” conditions. U.S.S.G. § 5D1.3(b), (d);
United States v. Vega, 332 F.3d 849, 853 n.8 (5th Cir. 2003) (per curiam);
Martinez, 250 F.3d at 942.
But these lines are not so clear cut. Sometimes a condition labeled
“special” is not special after all; it may essentially be a standard condition that
need not be pronounced. See Rouland, 726 F.3d at 735 (“[S]pecial conditions
may be tantamount to standard conditions under the appropriate
circumstances, thereby precluding the need for an oral pronouncement.”);
Torres-Aguilar, 352 F.3d at 937 (explaining that it is “irrelevant” that the
Guidelines label a condition “special” (quoting United States v. Asuncion-
Pimental, 290 F.3d 91, 94 (2d Cir. 2002))). When is a condition “special” in
name only? When the Guidelines recommend the condition, rather than
merely note that the condition may be appropriate. Torres-Aguilar, 352 F.3d
at 937–38 (concluding that pronouncement is not required for special
conditions that the Guidelines recommend). Adding to this confusion is that
we have sometimes said that conditions the Guidelines label as “special,” but
that are recommended and thus effectively standard, may become special
again when the judgment labels them as such (as the judgments here do for
the challenged conditions). See United States v. Ramos, 765 F. App’x 70, 71–
72 (5th Cir. 2019) (per curiam). Follow that?
We can do better. A return to first principles paves the way.
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We begin with the source of the pronouncement requirement. It is part
of a defendant’s right to be present for sentencing. 2 Vega, 332 F.3d at 852;
Martinez, 250 F.3d at 942. Including 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.” United States v.
Weathers, 631 F.3d 560, 562 (D.C. Cir. 2011).
And where does the right to be present at sentencing come from? Unlike
the right to be present at trial which stems from the Sixth Amendment’s
Confrontation Clause, the right to be present at proceedings that lack
testimony (usually true of sentencings) comes from the Fifth Amendment’s Due
Process Clause. See United States v. Gagnon, 470 U.S. 522, 526 (1985) (per
curiam). As is typically true of due process rights, this one does not set out
bright lines. “[T]he presence of a defendant is a condition of due process to the
extent that a fair and just hearing would be thwarted by his absence, and to
that extent only.” Snyder v. Massachusetts, 291 U.S. 97, 107–08 (1934). Put
differently, the right turns on whether a defendant’s “presence has a relation,
reasonably substantial, to the fullness of his opportunity to defend against the
charge.” Id. at 105–06. The sentencing hearing is a critical stage of a criminal
case—usually the critical stage these days when well over 95% of federal
defendants plead guilty—so we have recognized a constitutional right to be
present at sentencing. United States v. Huff, 512 F.2d 66, 71 (5th Cir. 1975).
This right is reflected in Federal Rule of Criminal Procedure 43(a)(3).
2 Some authority suggests that the pronouncement requirement also comes from the
notion that only what the judge says in court is a judicial act, whereas the entry of judgment
is a ministerial act. See, e.g., United States v. Marquez, 506 F.2d 620, 622 (2d Cir. 1974);
Watkins v. Merry, 106 F.2d 360, 361 (10th Cir. 1939). But that is not where we have rooted
the right. And another court called this theory “more conclusory than analytical.” United
States v. Weathers, 631 F.3d 560, 562 (D.C. Cir. 2011).
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The scope of the pronouncement requirement should correspond to the
standard governing the presence right from which it flows. So when is
pronouncement of a supervised release condition necessary to give the
defendant a sufficient “opportunity to defend”? Snyder, 291 U.S. at 105.
Certainly when imposition of that condition is discretionary, because then the
defendant can dispute whether it is necessary or what form it should take. But
when a condition is mandatory, there is little a defendant can do to defend
against it. The basic distinction underlying our pronouncement caselaw was
thus sound, though it became muddled by focusing on the labels used in the
Sentencing Guidelines and written judgments.
That confusion can be eliminated, or least minimized, by tethering the
need to pronounce to the statute that regulates supervised release conditions:
18 U.S.C. § 3583(d), which distinguishes between required and discretionary
conditions. Section 3583(d) first lists conditions the court “shall” impose (some
for all offenses, others for certain offenses). Examples include not committing
a crime or unlawfully possessing a controlled substance, cooperating in the
collection of a DNA sample, paying any restitution, and registering as a sex
offender for offenses that require it. Id. The statute then says that a court
“may” impose other conditions that are “reasonably related” to certain
statutory sentencing factors, “involve[] no greater deprivation of liberty than
is reasonably necessary” to accomplish certain sentencing objectives, and are
consistent with the Sentencing Guidelines. Id. It also cross-references the
statute that lists discretionary conditions of probation. Id. (citing 18 U.S.C.
§ 3563(b)). Having the pronouncement requirement depend on whether a
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condition is discretionary under section 3583(d) is a bright-line rule that tracks
the defendant’s right to be present at sentencing. 3
Tying the pronouncement requirement to section 3583(d)’s dividing line
produces another benefit: it will mirror the statutory requirement for when a
court must justify the conditions it imposes (what courts call the “articulation”
requirement). As just mentioned, discretionary conditions must be tailored to
statutory considerations. 18 U.S.C. § 3583(d); see United States v. Salazar, 743
F.3d 445, 451 (5th Cir. 2014) (discussing the need to make findings for these
discretionary conditions). It makes sense for the articulation and
pronouncement requirements to share the same trigger.
We therefore reject the byzantine distinctions we have drawn between
standard, mandatory, standard-but-listed-in-the-judgment-as-special, “true”
special, and not-really-special conditions when it comes to pronouncement. 4
From now on, what matters is whether a condition is required or discretionary
under the supervised release statute. See 18 U.S.C. § 3583(d). If a condition
is required, making an objection futile, the court need not pronounce it. If a
condition is discretionary, the court must pronounce it to allow for an objection.
Looking at these defendants’ conditions in terms of section 3583, the first
one requiring them to pay financial penalties—here, restitution—was
3 In-court pronouncement of discretionary conditions does not just allow defendants
an opportunity to opine on the propriety and scope of a condition. The requirement furthers
a victim’s right “to be reasonably heard” about what conditions would help protect them. 18
U.S.C. § 3771(a)(4); see also FED. R. CRIM. P. 32(i)(4)(B).
4 The Guidelines categories, see U.S.S.G. § 5D1.3, may retain significance in other
contexts. There is no problem with sentencing courts’ continuing to use that nomenclature.
Indeed, they will need to in at least one way: the judgment form district courts use separates
conditions into “mandatory,” “standard,” and “special” categories. ADMIN. OFFICE OF THE
U.S. COURTS, AO 245B, JUDGMENT IN A CRIMINAL CASE (2019).
We reject these labels only for deciding when pronouncement is required, replacing
them with section 3583(d)’s binary required/discretionary distinction. But, as we will
explain, to satisfy the pronouncement requirement when it exists, a district court may adopt
“standard conditions” listed in a general court order.
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required. 18 U.S.C. § 3583(d) (“The court shall order, as an explicit condition
of supervised release, . . . that the defendant make restitution . . . .”). The
court thus did not need to mention it at sentencing. But the other three—
allowing access to financial information, limiting credit, and banning
gambling—are not required under section 3583(d). Because those three
conditions had to be pronounced, we will examine whether the sentencing
judge satisfied that requirement when he adopted the PSR’s recommended
conditions.
B.
1.
We first address the standard of review. When a defendant objects for
the first time on appeal, we usually review only for plain error. See FED. R.
CRIM P. 52(b). This standard is “difficult” to overcome; it requires a defendant
to show an obvious error that impacted his substantial rights and seriously
affected the fairness, integrity, or reputation of judicial proceedings. Puckett
v. United States, 556 U.S. 129, 135 (2009).
But we do not review for plain error when the defendant did not have an
opportunity to object in the trial court. See FED. R. CRIM. P. 51(b) (“If a party
does not have an opportunity to object to a ruling or order, the absence of an
objection does not later prejudice that party.”). That principle applies when a
defendant appeals a court’s failure to pronounce a condition that later appears
in the judgment. See, e.g., United States v. Mudd, 685 F.3d 473, 480 (5th Cir.
2012); United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006); Torres-
Aguilar, 352 F.3d at 935. In our earlier cases that refused to find forfeiture of
a pronouncement challenge, the district court had not made any mention of the
condition at sentencing, nor was there any indication that the PSR proposed
the challenged condition. See Mudd, 685 F.3d at 480; Bigelow, 462 F.3d at 380;
Torres-Aguilar, 352 F.3d at 935. Our rejection of forfeiture in those cases was
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sensible because each defendant was blindsided when the condition showed up
for the first time in the judgment. But we then forgave a defendant’s failure
to object even when the district court informed him what conditions would
appear in the judgment by orally adopting conditions the PSR recommended.
See Rivas-Estrada, 906 F.3d at 349–50.
Our forfeiture caselaw in this area should be remoored to the opportunity
to object. That opportunity exists when the court notifies the defendant at
sentencing that conditions are being imposed. See Rouland, 726 F.3d at 733–
34. The district court gave the defendants that notice by telling them it was
adopting the PSR’s proposed conditions. An objection at sentencing would
have alerted the district court of a possible need to make a more detailed
recitation of the discretionary conditions and justify them. See Puckett, 556
U.S. at 134 (explaining that contemporaneous objections allow a district court
to correct any errors as they arise); see also Holguin-Hernandez v. United
States, 140 S. Ct. 762, 764 (2020) (“A criminal defendant who wishes a court of
appeals to consider a claim that a ruling of the trial court was in error must
first make his objection known to the trial-court judge.”). Plain-error review
applies.
2.
The defendants do not clear even the first of the four plain-error hurdles
for there was no error at all. We conclude that the district court pronounced
the conditions for the same reason that plain-error review applies: the judge
informed the defendants of the conditions, so they had an opportunity to object.
The pronouncement requirement is not a meaningless formality. As
discussed, it is part of the defendant’s right to be present at sentencing, which
in turn is based on the right to mount a defense. It is thus satisfied when a
district judge enables that defense by giving the defendant notice of the
sentence and an opportunity to object.
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Oral in-court adoption of a written list of proposed conditions provides
the necessary notice. The PSR is the centerpiece of sentencing. See FED. R.
CRIM. P. 32 (addressing primarily the presentence investigation and report
when outlining the rules for sentencing). The Probation Office must produce
it sufficiently in advance of sentencing to allow for the filing of written
objections. FED. R. CRIM. P. 32(e)(2) (requiring disclosure 35 days before
sentencing); see also 18 U.S.C. § 3552(d) (requiring disclosure at least 10 days
before sentencing). And the first order of business at most sentencing hearings
is to verify that the defendant reviewed the PSR with counsel. FED. R. CRIM.
P. 32(i)(1)(A). If he has not, the sentencing should not proceed. See, e.g., United
States. v. Reyes, 734 F. App’x 944, 945–46 (5th Cir. 2018) (per curiam)
(describing a district court’s halting a sentencing when it became unclear
whether the defendant had understood the PSR). 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.
United States v. Bloch, 825 F.3d 862, 872 (7th Cir. 2016) (rejecting a
pronouncement challenge to this procedure because the key concern is whether
the defendant had an opportunity to object at sentencing). Indeed, defendants
who receive notice of proposed conditions in their PSRs have “far more
opportunity to review and consider objections to those conditions” than
defendants who hear about them for the first time when the judge announces
them. 5 Id.
5 A document proposing conditions that a court orally adopts at sentencing may take
a form other than the PSR. Regardless of the type of document, the court must ensure, as it
does with the PSR, that the defendant had an opportunity to review it with counsel. And the
mere existence of such a document is not enough for pronouncement. The court must orally
adopt the written recommendations when the defendant is in court. Accordingly, the
Rouland procedure—in which the court admitted a list of proposed conditions but never said
that it was adopting those recommendations, 726 F.3d at 730—does not count as
pronouncement. Indeed, Rouland held only that the defendant failed to show the effect on
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We also continue to approve the longstanding practice in some districts
of a sentencing judge’s oral adoption of courtwide or judge-specific standing
orders that list conditions. See Vega, 332 F.3d at 853 (describing a general
order of standard and mandatory conditions that the Southern District of
Texas adopted in 1996). 6 A standing order provides advance notice of possible
conditions just as a PSR recommendation does. And the in-court adoption of
those conditions is when the defendant can object.
By permitting sentencing courts to orally adopt proposed conditions, we
do not minimize the liberty constraints that supervision conditions impose or
the important role they play in rehabilitation and protecting the public. To the
contrary, we give full force to what the Seventh Circuit has recognized:
providing written recommendations that a court then adopts affords earlier
notice than when a defendant hears conditions for the first time when the judge
announces them. See United States v. Lewis, 823 F.3d 1075, 1082 (7th Cir.
2016) (observing that “[t]here were no surprises in the sentencing hearing
related to supervised release” when the PSR recommended the conditions that
the court adopted). The adoption procedure also results in an enhanced
opportunity to object—objections to proposed conditions can even be filed
before sentencing—compared to when a lawyer must rely on memory and notes
his substantial rights that plain-error review requires; it did not bless the procedure. Id. at
734.
6 The Southern District of Texas’s standing order mentioned in Vega adopts the
mandatory and standard conditions listed in the Administrative Office of the U.S. Courts’
judgment form. See S. DIST. OF TEX., GENERAL ORDER NO. H-1996-10, IN THE MATTER OF
CONDITIONS OF PROBATION AND SUPERVISED RELEASE (1996). That judgment form includes
the thirteen standard conditions recommended by the Sentencing Guidelines. Compare AO
245B, supra note 4, with U.S.S.G. § 5D1.3(c).
The Southern District of Texas updated its standing order in 2017. S. DIST. OF TEX.,
GENERAL ORDER NO. H-2017-01, IN THE MATTER OF CONDITIONS OF PROBATION AND
SUPERVISED RELEASE (2017).
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of what the judge just said in deciding whether an objection is warranted. 7 It
is not surprising, then, that the defendants are unable to point to any problems
with an adoption procedure for supervision conditions in the many district
courts around the country that have used it. See, e.g., Bloch, 825 F.3d at 872;
United States v. Espinoza, 636 F. App’x 416, 418 (9th Cir. 2016) (per curiam);
United States v. Allison, 531 F. App’x 904, 904–05 (10th Cir. 2013); United
States v. Sebastian, 612 F.3d 47, 49 (1st Cir. 2010); United States v. Lateef, 300
F. App’x 117, 118 (2d Cir. 2008) (per curiam). 8
What is more, word-for-word recitation of each condition—just one can
be lengthy 9—during the emotionally charged sentencing hearing may result in
a “robotic delivery” that has all the impact of the laundry list of warnings read
during pharmaceutical ads. United States v. Cabello, 916 F.3d 543, 544–45
(5th Cir. 2019) (Higginbotham, J., concurring). And there is a cost, especially
in our border districts where numerous defendants are often sentenced in a
day, to prolonging sentencings with requirements that do not benefit the
parties: less time for the sentencing court to devote to resolving disputed issues
and deciding the critical questions of whether the defendant should go to prison
7 When a court adopts written recommendations, there are multiple opportunities to
object. A defendant can object to the PSR in writing, can object when the court generally
adopts the PSR, can object when handed a document listing the conditions at the hearing,
and of course can object when the court adopts the conditions.
8 Although a number of these cases are unpublished, our usual reluctance to rely on
nonprecedential authority is not implicated. We cite the cases to show what the district court
did, not how the appellate court ruled.
9 The following condition for sex offenders shows how detailed conditions can be:
The defendant shall not reside within 1,000 feet of the real property
comprising a public or private elementary, vocational, or secondary school or a
public or private college, junior college, university or playground or a housing
authority owned by a public housing authority or within 100 feet of a public or
private youth center, public swimming pool or video arcade facility, without
prior approval of the probation officer.
Rouland, 726 F.3d at 730.
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and, if so, for how long. See id. (recognizing that prolonged hearings may lead
to “perverse consequences in busy districts”).
Speaking of the custody question that a sentencing judge usually decides
before even addressing supervised release, it is worth considering our law
allowing courts to adopt parts of the PSR for key aspects of that decision. We
have long allowed district courts to adopt the PSR’s findings when calculating
the Sentencing Guidelines range. Courts routinely adopt the PSR’s Guidelines
calculations without having to recite each enhancement that makes up the
offense level or each conviction that receives criminal history points. FED. R.
CRIM. P. 32(i)(3)(A). Even when the defendant disputes an enhancement, the
district court may justify overruling the objection by adopting unrebutted
factual findings in the PSR; there is no need to spell out those facts. 10 See, e.g.,
United States v. Guzman-Reyes, 853 F.3d 260, 266 (5th Cir. 2017) (following
the longstanding practice of allowing a district court to adopt the factual
findings in the PSR when overruling an objection). It would make little sense
to prohibit incorporation-by-reference of the PSR for supervised release
conditions when we allow it for the Guidelines calculation that influences the
length of a defendant’s prison term, the most momentous and usually most
contested aspect of sentencing. See United States v. Tulloch, 380 F.3d 8, 13–
14 (1st Cir. 2004) (per curiam) (observing that “incorporation by reference” is
allowed for many aspects of sentencing when concluding that there is “no
potential for abuse in allowing courts to streamline sentencing proceedings by
incorporating by reference such well-known, commonly used conditions of
10Nor is a court always required to orally detail its reasons for imposing supervised
release. A court’s general “adoption of a PSR” supports the inference that it considered the
relevant considerations in imposing supervised release. United States v. Cancino-Trinidad,
710 F.3d 601, 606 (5th Cir. 2013) (recognizing this principle and finding error only because
the PSR that the court adopted contained an error).
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supervised release”). If oral adoption is good enough for the Guidelines
calculation, then it should be good enough for supervision conditions.
While holding that oral adoption of written conditions is pronouncement
of those conditions, we recognize that the practice may not satisfy other
requirements. For example, we mentioned earlier the articulation
requirement. Today’s opinion does not undo any of our caselaw describing
what satisfies that separate obligation. But any errors in articulation can be
rectified on remand. See Salazar, 743 F.3d at 451. Our 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. 11 United States v. Mireles, 471 F.3d 551, 558 (5th Cir.
2006) (explaining that a condition must be struck from the judgment when it
is not pronounced); United States v. Flores, 664 F. App’x 395, 398 (5th Cir.
2016) (per curiam) (summarizing our law about when a discrepancy is a
“conflict” that requires excising the condition from the judgment as opposed to
an “ambiguity” that may allow the condition to remain).
The defendants do not assert that the district court failed to justify the
conditions it imposed; they argue only that the court failed to recite those
conditions at sentencing. Because the district court adopted the conditions the
PSR proposed, it pronounced the three conditions it was required to: the
financial disclosure requirement and the gambling and credit restrictions.
In reaching this holding, we have clarified the law governing supervised
release conditions in three respects:
1. A sentencing court must pronounce conditions that are discretionary
under 18 U.S.C. § 3583(d).
11The court asked about the rationale for this stark remedy at oral argument. Given
our holding that there is no pronouncement error, this case does not afford us an opportunity
to reconsider that rule.
16
Case: 18-40521 Document: 00515398875 Page: 17 Date Filed: 04/29/2020
No. 18-40521
2. When a defendant fails to raise a pronouncement objection in the district
court, review is for plain error if the defendant had notice of the
conditions and an opportunity to object.
3. A sentencing court pronounces supervision conditions when it orally
adopts a document recommending those conditions.
The thread running through each of these rulings is notice and an
opportunity to object. Although the focus of this case was the adoption-of-the-
PSR practice often used in the Eastern District of Texas, we do not mandate
any particular procedure. As long as the sentencing judge notifies the
defendant of the conditions being imposed and allows an opportunity to object,
there will be no conflict with a judgment that lists those conditions.
* * *
The judgment is AFFIRMED.
17