United States v. Baez-Adriano ( 2023 )

Case: 21-50118 Document: 00516781797 Page: 1 Date Filed: 06/09/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
June 9, 2023
No. 21-50118 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Saul Baez-Adriano,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CR-77-1
______________________________
Before Dennis, Engelhardt, and Oldham, Circuit Judges.
Per Curiam:*
Baez-Adriano challenges the district court’s imposition of conditions
of supervised release. For the reasons set forth below, the district court
satisfied the oral-pronouncement requirement and its written judgment did
not conflict with the oral pronouncement. We therefore AFFIRM.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-50118 Document: 00516781797 Page: 2 Date Filed: 06/09/2023
No. 21-50118
I.
Baez-Adriano pleaded guilty to drug offenses and assaulting or
impeding U.S. Border Patrol agents. The district court sentenced him within
the guidelines range to a total of 46 months of imprisonment, three years of
supervised release, and a $225 special assessment. Although Baez-Adriano’s
presentence report (“PSR”) listed no conditions of supervised release, the
district court, at sentencing, specifically imposed “[t]he standard and
mandatory conditions of supervision … includ[ing] the conditions that the
defendant shall not commit another federal, state, or local crime during the
term of supervision.”1 Baez-Adriano made no objection to the impositions
of the “standard and mandatory” conditions. Nor did he seek clarification
or recitation of the specifics of those conditions. In addition to the standard
and mandatory conditions, the court pronounced the following two
discretionary, or special, conditions:
[1] And if the defendant is excluded, deported, or removed
upon release, the term of supervision shall be nonreporting. [2]
The defendant shall not illegally reenter the United States.
Should the defendant lawfully reenter the United States during
the term of supervision, the defendant shall immediately report
to the nearest U.S. Probation office.
The court’s written judgment included the above-listed special conditions as
well as the nine mandatory and seventeen standard conditions listed in the
Western District’s standing order. Baez-Adriano timely appealed.
_____________________
1
These “standard and mandatory conditions” are listed in a court-wide and public
standing order, amended on November 28, 2016. United States District Court,
Western District of Texas, Conditions of Probation and
Supervised Release (Nov. 28, 2016), https://www.txwd.uscourts.gov/wp-
content/uploads/2022/12/Conditions-of-Probation-and-Supervised-Release.pdf. The
court referenced, but did not read, the conditions at sentencing. And it did not explain that
these conditions were from the court’s standing order.
2
Case: 21-50118 Document: 00516781797 Page: 3 Date Filed: 06/09/2023
No. 21-50118
II.
Baez-Adriano presents two arguments. First, he contends that the
court’s imposition of the standard and mandatory conditions detailed in the
court-wide standing order was invalid because the conditions were never
properly pronounced. Second, he argues that the two special conditions (i.e.,
those not included in the court’s standing order) in the written judgment are
more burdensome than, and therefore conflict with, the court’s oral
pronouncement.
The parties initially dispute the standard of review. When “a
defendant objects to a condition of supervised release for the first time on
appeal, the standard of review depends on whether he had an opportunity to
object before the district court.” United States v. Martinez, 47 F.4th 364, 366
(5th Cir. 2022) (“Alexander Martinez”) (internal quotation marks and
citations omitted). “The opportunity to object exists – and thus a district
court satisfies the pronouncement requirement – when the court notifies the
defendant at sentencing that conditions are being imposed.” Id. at 367(internal quotation marks and citation omitted). If the defendant had the
opportunity to object, we review for plain error; if the defendant did not, we
review for abuse of discretion. See id. at 366.
Regarding Baez-Adriano’s challenge to the pronouncement of the
standard conditions, our review is for plain error. “A standing order provides
advance notice of possible conditions …. And the in-court adoption of those
conditions is when the defendant can object.” United States v. Diggles, 957
F.3d 551, 561 (5th Cir. 2020) (en banc). A court’s “‘shorthand reference’ to
its ‘standard conditions of supervision’ at sentencing ‘[i]s adoption all the
same.’” United States v. Vargas, 23 F.4th 526, 528 (5th Cir. 2022) (quoting
United States v. Grogan, 977 F.3d 348, 353 (5th Cir. 2020)). For the reasons
explained below, the Western District’s court-wide standing order and the
3
Case: 21-50118 Document: 00516781797 Page: 4 Date Filed: 06/09/2023
No. 21-50118
court’s oral, shorthand reference to “standard and mandatory conditions of
supervision” gave Baez-Adriano advance notice of the possible conditions.
See Grogan, 977 F.3d at 352 (citation omitted). Because Baez-Adriano did
not object when the district court pronounced that it was imposing the
standard and mandatory conditions, Baez-Adriano forfeited his objection.
See United States v. Martinez, 15 F.4th 1179, 1181 (5th Cir. 2021) (“Joshua
Martinez”) (“Because the court told Martinez it was imposing ‘standard
conditions,’ he had notice and an opportunity to object (or, at a minimum, to
ask for more specificity about the conditions).”). So, Baez-Adriano must
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 (citing Puckett v. United States, 556 U.S. 129, 135
(2009)). This plain-error-review standard “is ‘difficult’ to overcome.” Id.(citing Puckett, 556 U.S. at 135).
Regarding Baez-Adriano’s challenge that a conflict exists between the
oral pronouncement and written judgment as to the two discretionary, or
special, conditions, we apply a different standard of review. This challenge
is raised for the first time on appeal “for the simple reason that [Baez-
Adriano] had no opportunity at sentencing to consider, comment on, or
object to the special conditions later included in the written judgment.”
United States v. Bigelow, 462 F.3d 378, 381 (5th Cir. 2006). So, because the
alleged error appears for the first time in the written judgment, such that
Baez-Adriano did not have the opportunity to object in the district court, we
review for abuse of discretion. United States v. Tanner, 984 F.3d 454, 455-56
(5th Cir. 2021) (citing Bigelow, 462 F.3d at 381).
III.
We begin with the court’s imposition of the conditions listed in the
standing order. The district court must orally pronounce a sentence to
4
Case: 21-50118 Document: 00516781797 Page: 5 Date Filed: 06/09/2023
No. 21-50118
respect the defendant’s right to be present for sentencing. Diggles, 957 F.3d
at 556 (citations omitted). Conditions of supervised release are part of a
defendant’s sentence and must be pronounced unless their imposition is
required by 18 U.S.C. § 3583(d). See id. at 556-59. “[O]ral pronouncement
does not mean that the sentencing court must recite the conditions word-for-
word.” Grogan, 977 F.3d at 352. To satisfy the pronouncement requirement,
the district court may, among other things, reference a list of recommended
supervised release conditions from a court-wide or judge-specific standing
order. Diggles, 957 F.3d at 560-63 & n.5.
So, “[o]ral in-court adoption of a written list of proposed conditions
provides the necessary notice.” Id. at 560. However, “the mere existence
of such a document is not enough for pronouncement.” Alexander Martinez,
47 F.4th at 367 (internal quotation marks and citation omitted). Rather, the
court “must orally adopt that list of conditions within the document when
the defendant is in court and can object.” Id. And it must ensure that the
defendant had a chance to read and review that list with counsel. Diggles, 957
F.3d at 560-63 & n.5 (citations omitted). “If the in-court pronouncement
differs from the judgment that later issues, what the judge said at sentencing
controls.” Id. at 557.
Post-Diggles, our jurisprudence has devolved into only requiring the
court make a “shorthand reference” to standard conditions of supervision
found in a court-wide standing order and later imposed in the written
judgment. See, e.g., Vargas, 23 F.4th at 528. In Vargas, we affirmed a court’s
imposition of the standard conditions listed in a court-wide standing order
where the court merely stated that “the Court’s mandatory, standard, and
special conditions” would be imposed. Vargas, 23 F.4th at 527. There, the
district court “confirmed with Vargas that he and his counsel had reviewed
the presentence report (PSR), which had recommended ‘the mandatory and
standard conditions of supervision.’” Id. at 527. But it never expressly
5
Case: 21-50118 Document: 00516781797 Page: 6 Date Filed: 06/09/2023
No. 21-50118
adopted the PSR. Id. at 528. Then, “[t]he district judge went on to explain
to Vargas that ‘supervised release will be for a period of four years under the
Court’s mandatory, standard, and the special conditions’ to be ‘outlined
momentarily,’ but did not expressly cite the Western District [of Texas]’s
standing order.” Id. (original alterations omitted). We affirmed on the
grounds that, “it should have been clear to defense counsel in this case that
the ‘standard’ conditions of supervised release mentioned by the sentencing
judge were the same standard conditions referenced in Vargas’s PSR and set
forth in the Western District’s standing order.” Id.
In doing so, we relied on our observations in Joshua Martinez for the
proposition that the coupling of the oral reference to “standard conditions”
and the existence of the Western District of Texas’s standing order satisfied
the court’s pronouncement requirement. See Vargas, 23 F.4th at 528 (stating
that the “key observations” were the court’s reference to the standard
conditions and the standing order) (citing Joshua Martinez, 15 F.4th at 1181).
In Joshua Martinez, we concluded that the defendant had “in-court notice of
the conditions being imposed and ample opportunity to object” when the
district court: (1) adopted the PSR, which recommended standard
conditions;2 and (2) “announced it would impose ‘standard’ conditions.”
Joshua Martinez, 15 F.4th at 1181. “Given the longstanding existence of the
Western District’s standing order,” we reasoned that “defense counsel
certainly knew that the standard conditions being imposed were the ones
listed in the standing order and included in the judgment form created by the
Administrative Office of the United States Courts.” Id. (citation omitted).
From this, we derived the rule in Vargas: that oral reference to “standard
conditions” where there exists a standing order imposing said conditions is
_____________________
2
The PSR, however, did not cite to or append the Western District’s standing
order.
6
Case: 21-50118 Document: 00516781797 Page: 7 Date Filed: 06/09/2023
No. 21-50118
sufficient. Vargas, 23 F.4th at 528.3 It mattered not that Vargas’s PSR
referenced standard and mandatory conditions. Id. Vargas’s constitutional
rights were not violated because the court referred generally to “standard
conditions” and had a standing order in place. Cf. United States v. Aguilar-
Cerda, 27 F.4th 1093, 1095 (5th Cir. 2022) (observing that parties agreed the
district court did not plainly err because its pronouncement that “Defendant
shall comply with the standard conditions contained in this judgment”
sufficiently referenced the court’s standing order).
The Vargas court was right to conclude that satisfaction of the
pronouncement requirement centers on the court’s oral reference to and
imposition of the standing order, not the contents of the PSR. Absent an oral
reference by the court to “standard and mandatory” conditions while
imposing the sentence, we vacate the judgment and remand the case if only
the written judgment imposed the standard and mandatory conditions listed
in the court’s standing order. While it is always helpful if the PSR sets forth
suggested conditions for supervised release, including the standard and
mandatory conditions, the oral pronouncement of sentence controls,
_____________________
3
See also United States v. Carrasco, 2022 WL 16657170, at *1 (5th Cir. Nov. 3, 2022)
(Western District of Texas) (affirming, under plain-error review, district court’s judgment
where PSR recommended “the mandatory and standard conditions of supervision adopted
by the Court,” confirmed that the defendant and counsel reviewed the PSR, adopted the
PSR, and imposed “the standard and mandatory conditions of supervision); United States
v. Timpson, 2022 WL 4103256, at *2 (5th Cir. Sept. 7, 2022) (Western District of Texas)
(affirming, under plain-error review, district-court judgment where PSR recommended
“the mandatory and standard conditions of supervision adopted by the Court,” the court
adopted the PSR, and the court stated that it was imposing the “standard and mandatory
conditions of supervision”); United States v. Rodriguez, 830 F. App’x 445 (5th Cir. 2020)
(Western District of Texas) (concluding that the court appropriately referenced a court-
wide standing order when, according to the transcript, court merely stated “[t]he standard
and mandatory conditions of supervision are imposed”).
7
Case: 21-50118 Document: 00516781797 Page: 8 Date Filed: 06/09/2023
No. 21-50118
whether or not the PSR makes reference to the standard conditions listed in
the court’s standing order.
Take, for example, the situation where the PSR refers to the standard
and mandatory conditions and the court adopts the PSR, yet the court fails
to orally refer to the mandatory conditions at sentencing. In United States v.
Chavez, the PSR proposed “the mandatory and standard conditions of
supervision adopted by the Court.” 2022 WL 767033, at *4 (5th Cir. Mar.
14, 2022). It, however, “did not specifically identify the standing order or
include an appendix listing the challenged conditions.” Id. At sentencing,
the court adopted the PSR without objection after confirming that Chavez
had reviewed it. Id. According to the transcript, the district court never
referred to the standing order or confirmed that Chavez had reviewed it with
his counsel. Id. In fact, the transcript reflects that the court neglected to
refer to any conditions of supervised release at all – let alone those imposed
by the standing order. Unconvinced that the court satisfied the
pronouncement requirement, we vacated the judgment and remanded the
case. Id. at *4-*5.
Next, take the situation where the PSR refers to the standard and
mandatory conditions, but the court both fails to adopt the PSR and neglects
to orally refer to the mandatory and standard conditions at sentencing. Same
result. In Garcia-Marcelo, the PSR recommended imposing “the mandatory
and standard conditions adopted by the Court.” Garcia-Marcelo, 2022 WL
3684613, at *1, *3. But, at sentencing, the district did not adopt the PSR.
And it failed to make any oral reference to “standard” or “mandatory”
conditions generally, or to the standing order, id. at *3; see also United States
v. Griffin, 2022 WL 17175592, at *2 (5th Cir. Nov. 23, 2022) (vacating written
judgment and remanding case where district court made no oral reference to
standard conditions of supervised release and failed to adopt the PSR, which
recommended the conditions). Finding that the defendant did not have fair
8
Case: 21-50118 Document: 00516781797 Page: 9 Date Filed: 06/09/2023
No. 21-50118
notice that the court was imposing the conditions listed in the standing order
and that the court’s imposition of said conditions was an abuse of discretion,
we vacated the judgment and remanded the case. See Garcia-Marcelo, 2022
WL 3684613, at *3, *5.
We reached the same result in United States v. Jackson. 2022 WL
738668 (5th Cir. Mar. 11, 2022). There, the PSR had a “generic reference”
to “the mandatory and standard conditions of supervision adopted by the
[district c]ourt,” but neither listed the mandatory conditions nor expressly
referred to or attached the Western District’s standing order. Id. at *2
(alteration in original). At sentencing, the court failed to adopt the PSR. Id.
And, according to the sentencing transcript, it neglected to orally refer to any
“standard” or “mandatory” conditions. Again, we found that the defendant
did not have adequate notice that the conditions listed in the court’s standing
order were being imposed and, accordingly, vacated the judgment and
remanded the case.
Finally, take the situation where the PSR does not refer to the standard
and mandatory conditions and the court, while adopting the PSR, does not
orally reference the conditions. Again, same result. In United States v. Paz-
Mejia, the district court adopted the PSR, “but the PSR did not include an
appendix, reference the standing order, or set forth any standard conditions
of supervised release.” 2022 WL 1165645, at *1 (5th Cir. Apr. 20, 2022). At
sentencing, the district court failed to: (1) “mention that Paz-Mejia would be
subject to any ‘standard’ conditions of supervised release”; (2) reference the
court’s standing order; or (3) confirm that Paz-Mejia reviewed that order
with counsel. Id. (emphasis added). Upon reviewing the defendant’s
challenge to the court’s imposition of standard conditions in the written
judgment, we vacated the sentence and remanded the case to excise those
conditions that conflicted with (and went beyond) the oral pronouncement.
Id. at *1-*2.
9
Case: 21-50118 Document: 00516781797 Page: 10 Date Filed: 06/09/2023
No. 21-50118
Accordingly, when the court imposes standard conditions of
supervised release sourced from a standing order, the PSR’s inclusion or
exclusion of said conditions is irrelevant.4 It is the court’s reference to and
oral imposition of the court-wide standard conditions that is dispositive. See
Vargas, 23 F.4th at 528. Put differently, if the conditions imposed in the
written judgment match those in the standing order, a district court need only
orally reference the standard conditions to satisfy the pronouncement
requirement. In that instance, a simple reference to “standard conditions”
is sufficient. See id.
One caveat: the conditions in the written judgment must mirror those
in the court-wide order imposing conditions of supervised release. In
Alexander Martinez, we vacated the district court’s judgment and remanded
the case for amendment of the written judgment by removing the
unpronounced standard conditions. Alexander Martinez, 47 F.4th at 368. At
sentencing, “the district court affirmatively stated that it was requiring
Martinez to ‘comply with the standard conditions that will be set forth in the
judgment of conviction and sentence.’” Id. at 367. But we said that it was
“unclear” “what the district court meant by ‘the standard conditions,’”
even though the court’s website that included a page titled “Standard
Conditions of Probation or Supervised Release (AO 245B (9/19)).”5 Id.
Importantly, the conditions imposed in the written judgment did not track
the online conditions verbatim – but there was substantial overlap. Id. To
vacate and remand the judgment was necessary, we concluded, because “the
_____________________
4
It is always helpful for the Probation Office to explicitly include all proposed
supervised-release conditions, both in full in the body of the PSR and with a copy attached
to the PSR. And, of course, the court should verify on the record that counsel and the
defendant have reviewed and understand these conditions.
5
It is unclear for how long the website provided these specific conditions.
10
Case: 21-50118 Document: 00516781797 Page: 11 Date Filed: 06/09/2023
No. 21-50118
district court erred in failing to clarify ‘the standard conditions’ to which it
referred at the sentencing hearing or to expressly locate, identify, and adopt
by reference a specific written list of conditions.” Id.
In sum, it is imperative for the district court to reference the applicable
standing order’s “standard and mandatory” conditions of supervised
release, lest the imposition of said conditions in the written judgment conflict
with the oral pronouncement. And here, the district court did just that. Like
the court in Vargas, the court here stated that “[t]he standard and mandatory
conditions of supervision are imposed.” This shorthand reference, coupled
with the “longstanding existence of the Western District’s standing order,”
Joshua Martinez, 15 F.4th at 1181, was sufficient. That Baez-Adriano’s PSR
was silent as to the conditions of supervised release is irrelevant. Compare
Chavez, 2022 WL 767033, at *4-*5, with Jackson, 2022 WL 738668, at *2,
and Paz-Mejia, 2022 WL 1165645, at *1-*2.
The court did not commit plain error. Plain-error review involves four
prongs:
First, there must be an error or defect – some sort of “deviation
from a legal rule” – that has not been intentionally relinquished
or abandoned, i.e., affirmatively waived, by the appellant.
Second, the legal error must be clear or obvious, rather than
subject to reasonable dispute. Third, the error must have
affected the appellant’s substantial rights, which in the
ordinary case means he must demonstrate that it “affected the
outcome of the district court proceedings.” Fourth and finally,
if the above three prongs are satisfied, the court of appeals has
the discretion to remedy the error – discretion which ought to
be exercised only if the error “‘seriously affects the fairness,
integrity or public reputation of judicial proceedings.’”
11
Case: 21-50118 Document: 00516781797 Page: 12 Date Filed: 06/09/2023
No. 21-50118
Puckett v. United States, 556 U.S. 129, 135 (2009) (alterations and citations
omitted) (emphasis in original). All four prongs must be met. Puckett, 556
U.S. at 135.
Likely because Baez-Adriano contends that review is for abuse of
discretion, and not plain error, he does not brief the four plain-error prongs.
Importantly, however, “the burden is on the defendant to demonstrate that
the error affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Andaverde–Tinoco, 741 F.3d 509, 523 (5th Cir.
2013). Even assuming the court made an error, Baez-Adriano has not met his
burden to persuade us that the error resulted in a serious injustice. That’s
because if Baez-Adriano could show that the first three prongs were met, we
would decline to remedy the error. See Puckett, 556 U.S. at 135. “In analyzing
the fourth prong, we look to the degree of the error and the particular facts of
the case to determine whether to exercise our discretion.” United States v.
Prieto, 801 F.3d 547, 554 (5th Cir. 2015) (quoting United States v. Avalos–
Martinez, 700 F.3d 148, 154 (5th Cir. 2012)) (internal quotation marks
omitted).
The public would not perceive any grave injustice when: (1) a district
court orally imposes the conditions listed in a court-wide standing order, and
two other special conditions that largely mirror those in the written judgment
conditions, at sentencing; and (2) the defendant forewent his opportunity to
object to said conditions. Cf. Prieto, 801 F.3d at 554; Henderson v. United
States, 568 U.S. 266, 279 (2013) (observing, on plain-error review, that failure
to object weighed against relief). Because Baez-Adriano has not met his
burden to persuade us that the alleged error resulted in a serious injustice, we
decline to exercise our discretion to correct the purported error.
12
Case: 21-50118 Document: 00516781797 Page: 13 Date Filed: 06/09/2023
No. 21-50118
IV.
Next, we review Baez-Adriano’s challenge to the court’s imposition
of two special conditions on the grounds that there is a conflict between the
written judgment and the oral pronouncement. If a term or condition of a
sentence in the court’s written judgment conflicts with the oral sentence, the
oral sentence controls. Diggles, 957 F.3d at 557. “The key determination is
whether the discrepancy between the oral pronouncement and the written
judgment is a conflict or merely an ambiguity that can be resolved by
reviewing the rest of the record.” United States v. Mireles, 471 F.3d 551, 558
(5th Cir. 2006) (citing United States v. Torres-Aguilar, 352 F.3d 934, 935-36
(5th Cir. 2003)). A conflict exists when the written judgment “broadens the
restrictions or requirements of supervised release from an oral
pronouncement.” Id. (citing United States v. Wheeler, 322 F.3d 823, 828 (5th
Cir. 2003)). “If, however, there is ‘merely an ambiguity’ between oral and
written sentences, ‘then “[this court] must look to the intent of the
sentencing court, as evidenced in the record,” to determine the defendant’s
sentence.’” United States v. Vasquez-Puente, 922 F.3d 700, 703 (5th Cir.
2019) (quoting United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir.
2003)).
During sentencing, the district court orally pronounced the following
special conditions of supervised release:
(1) “[T]he defendant shall not commit another federal, state, or local
crime during the term of supervision.6 And if the defendant is excluded,
_____________________
6
In his briefing, Baez-Adriano contends that the district court’s mandate that “the
defendant shall not commit another federal, state, or local crime during the term of
supervision,” is part of this first special condition. Baez-Adriano acknowledges that “[t]he
condition related to criminal offenses” – i.e., that “the defendant shall not commit another
federal, state, or local crime during the term of supervision” – “is the same as mandatory
13
Case: 21-50118 Document: 00516781797 Page: 14 Date Filed: 06/09/2023
No. 21-50118
deported, or removed upon release, the term of supervision shall be
nonreporting”; and
(2) “The defendant shall not illegally reenter the United States.
Should the defendant lawfully reenter the United States during the term of
supervision, the defendant shall immediately report to the nearest U.S.
Probation office.”
In the written judgment, the district court defined the special conditions as:
(1) “The defendant shall not commit another federal, state or local
crime during the term of supervision. If the defendant is excluded, deported,
or removed upon release, the term of supervision shall be non-reporting”;
and
(2) “The defendant shall not illegally reenter the United States. If the
defendant is released from confinement or not deported or lawfully reenters
the United Sates during the term of supervised release, the defendant shall
immediately report in person to the nearest U.S. Probation Office.”
With respect to the first condition, Baez-Adriano argues, without
explanation, that “the written version is more burdensome.” Considering
that the oral pronouncement and the written judgment are identical, we find
no conflict.
With respect to the second condition, Baez-Adriano contends that the
written judgment requires him to report to the nearest U.S. Probation Office
“not only if Baez lawfully reenters the country but also if he ‘is released from
confinement or not deported.’” The “additional obligation to immediately
report to the nearest Probation Office upon ‘release[] from confinement’ or
_____________________
condition number 1,” which is required by 18 U.S.C. § 3583(d). To the extent he objects
against its imposition, his objection is futile. See Diggles, 957 F.3d at 559.
14
Case: 21-50118 Document: 00516781797 Page: 15 Date Filed: 06/09/2023
No. 21-50118
upon ‘not [being] deported’ is more burdensome,” says Baez-Adriano, “and
thus conflicts with the court’s oral pronouncement of sentence.” Putting
that observation aside, Baez-Adriano admits that “this condition is
somewhat consistent with the court’s pronouncement” – and we agree.
This is merely an ambiguity that can be resolved by looking to the
intent of the district court. See Mireles, 471 F.3d at 559. It is clear from the
record that the district court sought to prevent Baez-Adriano’s presence in
the United States without a duty to immediately report to the nearest U.S.
Probation Office. Since the written judgment effectuates the
pronouncement’s function, the judgment is not broader than the
pronounced. See United States v. Rivas-Estrada, 906 F.3d 346, 351 (5th Cir.
2018). The slightly different wordings between the oral and written
pronouncements are reconcilable and, therefore, inconsequential. The
district court did not abuse its discretion.
V.
Although the district court had the benefit of Diggles at the time of
Baez-Adriano’s sentencing, its loose procedure is unfortunately not rare. We
would be remiss if we failed to mention our frustration at the amount of post-
Diggles cases that ignore Diggles’s dictates. While our jurisprudence reflects
that the court satisfies its pronouncement requirement when it merely makes
oral reference to the court’s standard and mandatory conditions detailed in a
standing order, see Vargas, 23 F.4th at 528, we do not encourage this
procedure.
The well-grounded and legally-sound procedure for imposing
“standard” and “mandatory” conditions of supervised release listed in a
court’s standing order is:
1. The probation officer should either include the court’s standing
order in or append it to the PSR, or preferably both.
15
Case: 21-50118 Document: 00516781797 Page: 16 Date Filed: 06/09/2023
No. 21-50118
2. Defense counsel must review and explain the conditions in the
court’s standing order with the defendant before sentencing.
3. The district court must (a) confirm with the defendant that he or
she saw the standing order and had the opportunity to review it with defense
counsel; (b) ask the defendant whether he or she has any questions about the
conditions listed in the standing order; (c) orally pronounce that it is
imposing the conditions detailed in a specific standing order; 7 and (d) provide
the defendant with an opportunity to object.
Nonetheless, in this case, the district court did not plainly err in
imposing the standard and mandatory conditions detailed in the court-wide
standing order and two special conditions. Moreover, that there are the
slightly different (but reconcilable) wordings between the district court’s oral
and written pronouncements did not constitute an abuse of discretion.
Accordingly, we AFFIRM.
_____________________
7
The district court must identify the specific standing order.
16
Case: 21-50118 Document: 00516781797 Page: 17 Date Filed: 06/09/2023
No. 21-50118
Andrew S. Oldham, Circuit Judge, concurring in the judgment:
I take no issue with the way my esteemed colleagues apply our court’s
precedent in this case. But our precedents are deeply flawed. See United
States v. Griffin, 2022 WL 17175592, at *4 (5th Cir. 2022) (Oldham, J.,
dissenting). Amongst our myriad errors, we elevate spoken words over
written judgments—in direct contravention of legal rules that date back
centuries. Id. at *6–7. We should reevaluate that approach as an en banc court
because, as the majority opinion ably illustrates, this is a recurring problem.
17