United States v. Olivia Reyes ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50016
Plaintiff-Appellee,
D.C. No.
v. 3:19-cr-02272-LAB-1
OLIVIA REYES,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted March 3, 2021
Pasadena, California
Filed November 26, 2021
Before: Stephen A. Higginson, * Andrew D. Hurwitz, and
Daniel P. Collins, Circuit Judges.
Opinion by Judge Collins;
Concurrence by Judge Higginson
*
The Honorable Stephen A. Higginson, United States Circuit Judge
for the U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
2 UNITED STATES V. REYES
SUMMARY **
Criminal
The panel affirmed in part and vacated in part a sentence,
and remanded, in a case in which the defendant pleaded
guilty to unlawful importation of methamphetamine and
heroin.
The defendant’s principal contention was that the district
court erred by failing to give her advance notice before
imposing a special condition of supervised release that
requires her to submit to suspicionless searches by any law
enforcement officer. The defendant asserted that this
contravened United States v. Wise, 391 F.3d 1027 (9th Cir.
2004), which held that, “[w]here a condition of supervised
release is not on the list of mandatory or discretionary
conditions in the sentencing guidelines, notice is required
before it is imposed.” The Government contended that Wise
was effectively overruled by the Supreme Court in Irizarry
v. United States, 553 U.S. 708 (2008), which held that,
before imposing a custodial sentence, a district court is not
required to give advance notice that it is considering varying
upwards from the applicable sentencing range under the
Sentencing Guidelines. Rejecting the Government’s
contention that Reyes did not adequately preserve her
objection and that the panel should therefore review the lack-
of-notice issue only for plain error, the panel considered the
issue de novo. Reviewing the relevant caselaw leading up to
Wise, as well as the later decision in Irizarry, the panel
concluded that Wise is easily reconciled with Irizarry, and
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. REYES 3
remains binding. The panel held that the district court
therefore erred by failing to give notice that it was
contemplating imposing its broad search condition prior to
imposing that condition in its oral pronouncement of
sentence.
Reviewing for plain error the defendant’s contention that
the district court failed to explain at sentencing why it
rejected her request for a downward departure or a variance,
the panel found no basis to conclude that an obvious and
prejudicial error occurred, much less one that seriously
affected the fairness, integrity, or public reputation of
judicial proceedings. The panel therefore affirmed the
custodial portion of her sentence.
Because vacating at least the suspicionless-search
condition based on the Wise error alters the overall package
of conditions that the district court thought were warranted
to ensure that the defendant was adequately supervised after
her release from incarceration, the panel exercised its
discretion to vacate the entirety of the supervised release
portion of her sentence and to remand to the district court for
the limited purpose of imposing a new supervised release
sentence.
Judge Higginson concurred in the judgment, agreeing
that the sentence must be vacated because numerous
supervised release conditions which appeared in the
defendant’s written judgment were not pronounced orally at
sentencing. He would realign this aspect of sentencing with
the court’s duty under 18 U.S.C. § 3583—to confirm
relatedness to a defendant’s circumstance and least
restrictiveness—by requiring oral articulation at sentencing
of any supervised release condition that is discretionary
regardless of whether a Sentencing Commission policy
statement classifies the condition as “standard” or “special.”
4 UNITED STATES V. REYES
COUNSEL
Doug Keller (argued), Law Office of Doug Keller, San
Diego, California, for Defendant-Appellant.
David Chu (argued), Assistant United States Attorney;
Daniel Earl Zipp, Chief, Appellate Section, Criminal
Division; Robert S. Brewer, Jr., United States Attorney;
United States Attorney’s Office, San Diego, California, for
Plaintiff-Appellee.
OPINION
COLLINS, Circuit Judge:
Olivia Reyes appeals the sentence imposed by the district
court after she pleaded guilty to unlawful importation of
methamphetamine and heroin. Her principal contention is
that the district court erred by failing to give her advance
notice before imposing a special condition of supervised
release that requires her to submit to suspicionless searches
by any law enforcement officer. Reyes asserts that this
contravened our decision in United States v. Wise, 391 F.3d
1027 (9th Cir. 2004), which held that, “[w]here a condition
of supervised release is not on the list of mandatory or
discretionary conditions in the sentencing guidelines, notice
is required before it is imposed.” Id. at 1033. The
Government contends that Wise was effectively overruled by
the Supreme Court in Irizarry v. United States, 553 U.S. 708(2008), which held that, before imposing a custodial
sentence, a district court is not required to give advance
notice that it is considering varying upwards from the
applicable sentencing range under the Sentencing
Guidelines. We conclude that Wise remains good law after
UNITED STATES V. REYES 5
Irizarry, and we therefore vacate the sentence in part, affirm
it in part, and remand.
I
Pursuant to a written plea agreement, Reyes pleaded
guilty to a two-count information charging her with
(1) importation of 50.4 kilograms of a mixture or substance
containing a detectable amount of methamphetamine, in
violation of 21 U.S.C. §§ 952(a), 960(b)(1)(H); and
(2) importation of 640 grams of a mixture or substance
containing a detectable amount of heroin, in violation of
21 U.S.C. §§ 952(a), 960(b)(2)(A). According to the factual
basis set forth in the plea agreement, Reyes drove a vehicle
containing those drugs from Mexico into the United States
through the Otay Mesa Port of Entry on May 22, 2019, and
she “knew there was a high probability that the vehicle
contained methamphetamine and heroin, or some other
federally controlled substance, and [she] deliberately
avoided learning the truth.”
At Reyes’s sentencing hearing, the district court
calculated a Sentencing Guidelines range of 151–188
months, which it considered “too high for this offense” after
considering the various sentencing factors set forth in
18 U.S.C. § 3553(a). The court also concluded that, in light
of amendments made by the First Step Act, Reyes was
eligible under the so-called “safety valve” provision, see id.§ 3553(f), for a sentence below the otherwise applicable
mandatory minimum 10-year sentence for count one
specified in 21 U.S.C. § 960(b)(1)(H). Although Reyes
requested a 42-month sentence, the court ultimately agreed
with the Government’s recommendation to impose a 78-
month sentence. The court also imposed a five-year term of
supervised release. See 18 U.S.C. §§ 3553(f); 21 U.S.C.
§ 960(b)(1), (2).
6 UNITED STATES V. REYES
In pronouncing the sentence, the district court orally
recited several case-specific conditions of supervised
release. In doing so, the court generally followed some of
the special conditions that had been recommended by the
Probation Office in its presentence report (“PSR”). As to
one of those conditions, however, the district court’s oral
sentence made a significant change, without prior warning
to the parties, from what the PSR had suggested.
Specifically, in lieu of the PSR’s proposed condition that
Reyes submit to searches of her “person, property, house,
residence, vehicle, papers, computers,” other electronic
devices, or “office” by a “United States probation officer”
upon reasonable suspicion of a violation of her supervised
release conditions, the court instead required Reyes to
submit “to a search of her person, her property, her
residence, and her vehicle by the probation officer or by any
peace officer, state, federal, or local.” The court explained
that “[t]he stealthy conduct involved here justifies an
expansion of the search conditions to include police, not just
the probation officer.” After Reyes’s counsel objected to
that condition in the already-pronounced sentence, the court
cut him off and explained why the court had imposed it. The
court reiterated that Reyes’s offense behavior had involved
“stealthy, sneaky conduct,” and the court added that, in light
of the PSR’s recounting of Reyes’s drug-related text
messages, her drug trafficking here “was not a one-off
situation.” The court further noted that Reyes had a prior
state court conviction for child endangerment arising from
allowing her child to be in a house from which another
person sold drugs. Those reasons, the court concluded, “call
for greater restrictions on [Reyes’s] Fourth Amendment
rights while she’s on supervised release.”
The district court’s subsequent written judgment
included a somewhat different list of supervised release
UNITED STATES V. REYES 7
conditions from those stated orally at the sentencing. The
judgment included the mandatory and standard conditions
set forth in 18 U.S.C. § 3583(d) and U.S.S.G. § 5D1.3(a),
(c), even though those had not been expressly mentioned at
the sentencing hearing. Cf. United States v. Napier, 463 F.3d
1040, 1043 (9th Cir. 2006). More importantly, several of the
special conditions were worded either differently, or in more
detail, than in the oral sentence. As to the search condition,
the written sentence provided as follows:
Submit to a search of person, property, house,
residence, office, vehicle, papers, cellular
phone, computer or other electronic
communication or data storage devices or
media effects, conducted by a United States
Probation Officer or any federal, state, or
local law enforcement officer, at any time
with or without a warrant, and with or
without reasonable suspicion. Failure to
submit to such a search may be grounds for
revocation; you shall warn any other
residents that the premises may be subject to
searches pursuant to this condition.
There were also differences in wording in the supervised
released conditions involving Reyes’s ability to travel to
Mexico, her participation in a mental health treatment
program, and her maintaining full-time employment or
education.
Reyes timely appealed. We have jurisdiction pursuant to
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
8 UNITED STATES V. REYES
II
In United States v. Wise, 391 F.3d 1027 (9th Cir. 2004),
we held that when a particular “condition of supervised
release is not on the list of mandatory or discretionary
conditions in the sentencing guidelines, notice is required
before it is imposed, so that counsel and the defendant will
have the opportunity to address personally its
appropriateness.” Id. at 1033. Here, the district court’s
search condition was not on the list of mandatory or standard
conditions in U.S.S.G. § 5D1.3(a), (c). See also 18 U.S.C.
§ 3583(d) (setting forth certain mandatory conditions, which
are incorporated into § 5D1.3(a)). Although a search
condition was recommended in the PSR that was provided
to Reyes in advance of the sentencing hearing, Reyes had no
objection to that condition, which was much narrower than
the one that the district court ultimately imposed.
Moreover, at no time prior to the imposition of sentence
did the district court provide any notice to the parties that it
was considering a substantial modification and expansion of
the search condition that the PSR had proposed. That point
is significant, because we further specifically held in Wise
that some notice prior to imposing sentence is required:
It may be enough in many cases for the judge
to mention orally at the sentencing hearing
that he is contemplating a condition, in case
either party wishes to comment or request a
continuance. It is not enough notice,
however, first to impose the sentence, and
then to invite counsel to comment, at least
where counsel objects as occurred here. That
is no notice at all. Talking a judge out of a
decision he has already made is a different
and harder task than persuading him not to
UNITED STATES V. REYES 9
make it. Also, such an approach prevents
negotiation of a condition more precisely
tailored to the legitimate interests of both
sides.
391 F.3d at 1033. Wise would seemingly require us to find
that the district court’s lack of advance notice was erroneous
and to “vacate” at least this condition and to “remand on
account of th[at] lack of notice.” Id.The Government implicitly concedes that Wise, if
directly applicable, would require that result, but it asserts
two reasons why we should nonetheless affirm the district’s
court’s search condition. For the reasons set forth below, we
reject both contentions.
A
First, the Government argues that Reyes did not
adequately preserve below her objection to the lack of
advance notice and that she cannot satisfy the more
demanding showing required by the plain-error doctrine.
See FED. R. CRIM. P. 52(b) (“A plain error that affects
substantial rights may be considered even though it was not
brought to the court’s attention.”); United States v. Olano,
507 U.S. 725, 732–37 (1993) (explaining that, to obtain
reversal based on plain error, the defendant must show that
there was an “error”; that it was “clear” or “obvious”; that it
“affect[s] substantial rights”; and that it “seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings”) (simplified). We disagree.
The Government relies on United States v. Watson,
582 F.3d 974 (9th Cir. 2009), in which the defendant
similarly challenged on appeal a special condition of
supervised release that was never mentioned until it was
10 UNITED STATES V. REYES
actually imposed. Id. at 981. In determining what standard
of review to apply, we stated that, “[w]hile Watson protested
the actual condition at sentencing, he did not object on the
grounds of insufficient notice, so we review that claim for
plain error.” Id. (emphasis added). But in Watson,
immediately after imposing the condition, the district court
engaged in an extended colloquy with defense counsel
during which that counsel had a full and fair opportunity to
raise any grounds of objection. Id. at 979–80 (reproducing
that colloquy). By contrast, no such opportunity was
afforded to Reyes’s counsel. The district court instead cut
off counsel in mid-sentence, explained its reasoning, and
then concluded with the remark that “Your objection is
noted.” 1
1
The full exchange, which occurred at the very end of the hearing
transcript, is as follows:
[DEFENSE COUNSEL]: And just for the record, I do
want to object to the full Fourth Amendment waiver.
I think it’s—it would be a lot more in line with this
case that she submit to a search by a probation officer
at a reasonable time—
THE COURT: I disagree with that for two reasons.
One, even acknowledging that she wasn’t the one
dealing drugs out of the house, she shouldn’t have
been there with a two-year-old. She should have sized
up what was going on and left, number one.
Number two, the record here that I’ve accepted,
unobjected to, was that—as I found, that the
defendant—this was not a one-off situation. She was
involved in—in drug trafficking, and making
arrangements with others. And the texts reveal that.
And that was over a period of time. Those
circumstances involve stealthy, sneaky conduct, trying
UNITED STATES V. REYES 11
In view of the district court’s interruption of defense
counsel’s objection, the court’s ensuing considered
explanation, and its concluding definitive comment that
counsel’s “objection is noted,” we do not think that counsel
was afforded “any real opportunity to object” further. See
United States v. Blueford, 312 F.3d 962, 974 (9th Cir. 2002).
We therefore reject the Government’s suggestion that we
should review the lack-of-notice issue only for plain error,
and we instead consider that issue de novo. See United
States v. Hahn, 557 F.3d 1099, 1101 (9th Cir. 2009); see also
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.”).
B
The Government alternatively contends that our decision
in Wise was effectively overruled by the Supreme Court’s
subsequent decision in Irizarry v. United States, 553 U.S.
708 (2008), and that Wise is therefore no longer binding. In
assessing this contention, we begin by reviewing the relevant
caselaw leading up to our decision in Wise, as well as the
later decision in Irizarry. That review demonstrates that
Wise is easily reconciled with Irizarry, and that Wise remains
binding. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc) (holding that a three-judge panel can
to keep things away from cops and police, so they
don’t know, including expressly, you know, changing
language, and changing the reasons why we’re coming
in, discussing stealthy measures.
All of those things, I think, call for greater restrictions
on her Fourth Amendment rights while she’s on
supervised release. That’s my response. Your
objection is noted.
12 UNITED STATES V. REYES
disregard otherwise binding Ninth Circuit precedent only if
an intervening Supreme Court or en banc decision
“undercut[s] the theory or reasoning underlying the prior
circuit precedent in such a way that the cases are clearly
irreconcilable”).
1
In Burns v. United States, 501 U.S. 129 (1991), the
Supreme Court addressed “whether a district court may
depart upward from the sentencing range established by the
Sentencing Guidelines without first notifying the parties that
it intends to depart.” Id. at 131. The Court noted that “[i]n
the ordinary case, the presentence report or the
Government’s own recommendation will notify the
defendant that an upward departure will be at issue and of
the facts that allegedly support such a departure.” Id. at 135.
Burns, by contrast, was “the extraordinary case in which the
district court, on its own initiative and contrary to the
expectations of both the defendant and the Government,
decide[d] that the factual and legal predicates” for an upward
departure were satisfied. Id. Noting that the then-existing
version of Federal Rule of Criminal Procedure 32(a)(1)—
which had been directly enacted by Congress rather than
adopted through the ordinary rules process—“mandates that
the parties be given ‘an opportunity to comment upon the
probation officer’s determination and on other matters
relating to the appropriate sentence,’” the Court held that “it
makes no sense to impute to Congress an intent that a
defendant have the right to comment on the appropriateness
of a sua sponte departure but not the right to be notified that
the court is contemplating such a ruling.” Id. at 135–36
(quoting FED. R. CRIM. P. 32(a)(1) (1990 ed.)); see also PUB.
L. NO. 98-473, Title II, § 215, 98 Stat. 1837, 2014 (1984)
UNITED STATES V. REYES 13
(rewriting Rule 32(a)(1) as part of the Sentencing Reform
Act). 2
The Burns Court emphasized that, given the critical role
that departures played under the then-mandatory Sentencing
Guidelines, a lack of notice of an upward departure would
“render[ ] meaningless the parties’ express right ‘to
comment upon . . . matters relating to the appropriate
sentence.’” 501 U.S. at 136 (quoting FED. R. CRIM.
P. 32(a)(1) (1990 ed.)). As the Court explained, in the
absence of such a departure, the district court was required
to impose a sentence within the Guidelines range. Id. at 133.
And because neither the PSR nor the Government had
suggested that Burns’s case presented any grounds for
upward departure, there was simply no basis to expect, going
into the sentencing hearing in that case, that an upward
departure was a possibility that defense counsel had to be
prepared to address. Id. at 131, 135. Moreover, given the
limitless “number of potential factors that [might] warrant a
departure,” the parties were not “in a position to guess when
or on what grounds a district court might depart, much less
to ‘comment’ on such a possibility in a coherent way.” Id.at 136–37. Finally, the Court concluded that a narrower
reading of Rule 32(a)(1) would raise serious due process
concerns and should therefore be avoided if possible. Id.at 138 (citing Edward J. DeBartolo Corp. v. Florida Gulf
Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575
(1988)). The Court therefore held that “before a district
court can depart upward on a ground not identified as a
2
The relevant language in Rule 32 is now contained, in substantially
similar form, in Rule 32(i)(1)(C). See FED. R. CRIM. P. 32(i)(1)(C) (“At
sentencing, the court[] . . . must allow the parties’ attorneys to comment
on the probation officer’s determinations and other matters relating to an
appropriate sentence.”).
14 UNITED STATES V. REYES
ground for upward departure either in the presentence report
or in a prehearing submission by the Government, Rule 32
requires that the district court give the parties reasonable
notice that it is contemplating such a ruling.” Id.We distinguished Burns in United States v. Lopez,
258 F.3d 1053 (9th Cir. 2001), which involved a district
court’s sua sponte decision to require, as a condition of
supervised release, that the defendant participate in a mental
health treatment program. Id. at 1055–56. We observed
that, although technically a “special” condition of supervised
release, this particular condition was expressly
“contemplated by the guidelines.” Id. at 1055. That is,
§ 5D1.3(d)(5) “specifically recommends that a special
condition of mental health program participation be
imposed[] ‘[i]f the court has reason to believe that the
defendant is in need of psychological or psychiatric
treatment.’” Id. (quoting U.S.S.G. § 5D1.3(d)(5)). Because
this special condition was included among the relatively
modest number of “special” conditions expressly suggested
by the Guidelines, a defendant whose history presented
actual or potential mental health issues was on notice that
such a condition was a possibility. As we explained, such a
condition “is not outside the guidelines range—or the range
of expectations—in the same way that a departure is.” Id.
at 1056.
We then, in turn, distinguished Lopez in our decision in
Wise. In the latter case, the district court had sua sponte
imposed, without advance notice, a condition of supervised
release restricting the defendant’s contact with children,
including a specific restriction on her “custody and contact”
with her five-year-old son. Wise, 391 F.3d at 1030–31. We
concluded that, because this condition was not one of the
special conditions suggested in the Guidelines, the notice
UNITED STATES V. REYES 15
issue presented in Wise fell “on the Burns rather than the
Lopez side of the line.” 391 F.3d at 1032. Because neither
the PSR nor the Government had suggested such a special
condition and it was “not on the list of mandatory or
discretionary conditions in the sentencing guidelines,” we
held that “notice is required before it is imposed, so that
counsel and the defendant will have the opportunity to
address personally its appropriateness.” Id. at 1033.
Thereafter, in Irizarry, the Supreme Court addressed the
distinct question whether a district court at sentencing is
required to give notice that it is contemplating a “variance”
from the Sentencing Guidelines. See 553 U.S. at 709–10.
After the “mandatory features of the Guidelines” were
“invalidated” in United States v. Booker, 543 U.S. 220(2005), the Guidelines became “advisory” in nature and
were simply one of the sentencing factors to be considered
under 18 U.S.C. § 3553(a). Irizarry, 553 U.S. at 713–14. In
all cases, therefore, a court “has the legal authority to impose
a sentence outside the [Guidelines] range either because he
or she ‘departs’ from the range (as is permitted by certain
Guidelines rules) or because he or she chooses to ‘vary’ from
the Guidelines by not applying them at all.” Chavez-Meza
v. United States, 138 S. Ct. 1959, 1963 (2018) (emphasis
added). At the time that Irizarry was decided, Burns’s
holding that notice was required for departures had been
codified into its own separate provision of Rule 32, see FED.
R. CRIM. P. 32(h), 3 and the Court concluded that this special
3
That rule provides as follows:
Before the court may depart from the applicable
sentencing range on a ground not identified for
departure either in the presentence report or in a
party’s prehearing submission, the court must give the
16 UNITED STATES V. REYES
rule for “departure[s]” does “not apply to 18 U.S.C. § 3553variances by its terms,” Irizarry, 553 U.S. at 714. The
question, then, was whether the general provisions of
Rule 32 on which Burns was based required a similar result
in the case of variances. The Court held that the answer to
this question is no. Id. at 714–16.
Unlike in Burns, in which a court-initiated departure
undermined the “expectation” that “a criminal defendant
would receive a sentence within the presumptively
applicable Guidelines range,” the post-Booker sentencing
regime affords judges substantial discretion in applying the
§ 3553 factors to determine the appropriate term of
incarceration. Id. at 713–14. Because all parties know that,
at sentencing, the district court has discretion to select a
custodial sentence based on the enumerated statutory factors,
the Court held that “[t]he due process concerns that
motivated the Court to require notice in a world of
mandatory Guidelines no longer provide a basis for this
Court to extend the rule set forth in Burns either through an
interpretation of Rule 32(h) itself or through
Rule 32(i)(1)(C).” Id. at 714. Given the now “fluid and
dynamic process” involved in selecting the term of
incarceration, the possibility of a variance is on the table in
every case, and so “announcing that possibility” is unlikely
to “change[] the parties’ presentations in any material way”
in “most cases.” Id. at 715 (citation and internal quotation
marks omitted). Accordingly, the Court concluded that “the
justification for our decision in Burns no longer exists,” and
parties reasonable notice that it is contemplating such
a departure. The notice must specify any ground on
which the court is contemplating a departure.
Fed. R. Crim. P. 32(h).
UNITED STATES V. REYES 17
a district court is therefore not required to provide notice that
it is contemplating a variance from the Guidelines range. Id.
at 716.
2
Against this backdrop, we have little difficulty in
concluding that Wise remains good law after Irizarry.
As an initial matter, a key consideration on which
Irizarry relied—the substantial change wrought by Booker’s
elimination of the statutory mandate in § 3553(b)(1) to
impose a sentence within the Guidelines range unless there
are grounds for a departure—has no analog in the context of
special conditions of supervised release. Insofar as the
selection of such conditions are concerned, Booker made no
relevant change to a district court’s discretion. Both before
Booker, and today, the court has the same measure of
substantial discretion to select special conditions. Given
that, in contrast to the custodial sentencing at issue in
Irizarry, there is no relevant change in the sentencing system
concerning special conditions of supervised release, there is
no basis for concluding that the notice concerns that we
identified in Wise have been in any way diminished.
Moreover, the sort of custodial sentencing issue
addressed in Irizarry differs in an additional critical respect
from the crafting of special supervised release conditions.
By its nature, the selection of a fixed term of incarceration
is largely a unidimensional decision—considering the
§ 3553(a) factors, the judge must select some determinate
number of months between zero and the applicable statutory
maximum. All parties thus appear at a sentencing prepared
to address what that number of months should be and how
the various factors should be weighed. Irizarry, 553 U.S.
at 716 (“‘Garden variety considerations of culpability,
18 UNITED STATES V. REYES
criminal history, likelihood of re-offense, seriousness of the
crime, nature of the conduct and so forth should not
generally come as a surprise to trial lawyers who have
prepared for sentencing.’”) (citation omitted). For that
reason, as the Court noted, it would be pointless to require a
district court to inform the parties in advance that it is
contemplating varying from the Guidelines in selecting the
custodial sentence. Id. at 715. But as we explained in Wise,
there is no inherent limitation on the wide variety of special
conditions that could be imposed on a term of supervised
release, and notice is therefore required if the court is
contemplating a condition that is neither being requested by
the PSR nor a party nor “on the list of mandatory or
discretionary conditions in the sentencing guidelines.”
391 F.3d at 1033. Indeed, a special condition of supervised
release does not even “have to be related to the offense of
conviction.” Id. at 1031.
Accordingly, the entire rationale for Irizarry’s
conclusion—that, post-Booker, all parties know that they
need to be prepared at sentencing to advocate for a specific
number of months within a highly discretionary
unidimensional numerical range—has no application to a
situation in which the court is contemplating a special
condition that is not mentioned in the Guidelines and that no
party nor the PSR has proposed. In the distinct situation of
special conditions of supervised release, it remains difficult
to see how the parties can be expected to “comment” on this
“matter[] relating to an appropriate sentence,” see FED. R.
CRIM. P. 32(i)(1)(C), if they have no idea, from either the
Guidelines, the PSR, or the parties’ submissions, that a
particular condition is a possibility, see Burns, 501 U.S.
at 135–36; Wise, 391 F.3d at 1032–33.
UNITED STATES V. REYES 19
Because Wise can be readily reconciled with Irizarry, it
remains binding. See Miller, 335 F.3d at 899–900.
Accordingly, Wise controls here. The district court therefore
erred by failing to give notice that it was contemplating
imposing its broad search condition prior to imposing that
condition in its oral pronouncement of sentence. We
therefore must vacate at least that portion of Reyes’s
sentence.
III
Reyes raises only one challenge to the custodial portion
of her sentence—she contends that the district court failed to
explain at sentencing why it rejected her request for a
downward departure under United States v. Mendoza,
121 F.3d 510 (9th Cir. 1997), or for a variance on similar
grounds. In Mendoza, we held that, when the facts indicate
that the defendant “had no control over, or knowledge of, the
purity of the [drugs] that he [or she] delivered,” a district
court has authority to depart downwards on the ground that
the drug-quantity-based Guidelines offense level “grossly
overstates the culpability of the defendant’s conduct.” Id.at 513–14. In her sentencing memorandum, Reyes briefly
argued that she should receive a downward departure or
variance because she “lacked control and knowledge of the
type and quantity of narcotics” she imported. Reyes’s
counsel, however, did not specifically mention this ground
at sentencing, and the court did not advert to it in its
explanation of the sentence. Because Reyes made no
objection and did not specifically ask the court to address the
point, she concedes that our standard of review is only for
plain error. We find no plain error.
A “district court need not tick off each of the § 3553(a)
factors to show that it has considered them,” but “when a
party raises a specific, nonfrivolous argument tethered to a
20 UNITED STATES V. REYES
relevant § 3553(a) factor in support of a requested sentence,
then the judge should normally explain why he [or she]
accepts or rejects the party’s position.” United States v.
Carty, 520 F.3d 984, 992–93 (9th Cir. 2008). Reyes’s
Mendoza-based argument was not frivolous, but given that
it spanned just five lines in her sentencing memorandum, and
her attorney never mentioned it at the hearing, we cannot say
that the district judge’s failure to specifically mention it was
an “obvious” error. See Olano, 507 U.S. at 734. Moreover,
the district court carefully explained the many
considerations that underlay its decision to choose a 78-
month sentence, which represented a substantial downward
variance from the Guidelines range of 151–188 months.
Given that the court’s explanation sufficiently
“communicate[d] that the parties’ arguments have been
heard, and that a reasoned decision has been made,” Carty,
520 F.3d at 992, we find no basis to conclude that an obvious
and prejudicial error occurred, much less one that “‘seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings,’” Olano, 507 U.S. at 736 (citation
omitted).
IV
Based on the Wise error, we must at least vacate the
special condition of supervised release requiring Reyes to
submit to suspicionless searches by any law enforcement
agency. Because that alters the overall package of
conditions that the district court thought were warranted to
ensure that Reyes was adequately supervised after her
release from incarceration, we exercise our discretion to
vacate the entirety of the supervised release portion of her
sentence and to remand to the district court for the limited
UNITED STATES V. REYES 21
purpose of imposing a new supervised release sentence. 4
We affirm, however, the district court’s imposition of
concurrent sentences of 78 months imprisonment on both
counts. See United States v. Doe, 488 F.3d 1154, 1163 (9th
Cir. 2007) (limited remand of only the supervised release
portion of the sentence is an appropriate remedy for Wise
error).
AFFIRMED IN PART, VACATED IN PART, and
REMANDED.
HIGGINSON, Circuit Judge, concurring in the judgment:
I concur in the judgment, agreeing that Reyes’ sentence
must be vacated because numerous supervised release
conditions which appeared in her written judgment were not
pronounced orally at sentencing. United States v. Munoz-
Dela Rosa, 495 F.2d 253, 256 (9th Cir. 1974) (“The only
sentence that is legally cognizable is the actual oral
pronouncement in the presence of the defendant.”); FED. R.
CRIM. P. 35(c) (same); see also United States v. Blueford,
312 F.3d 962, 974 (9th Cir. 2002).
Although the most intrusive supervised release condition
that was broadened in the written judgment is a near-
limitless provision requiring Reyes to submit to searches “at
4
Our vacatur of the supervised release portion of Reyes’s sentence
moots her remaining arguments that there are improper discrepancies
between the oral and written versions of some of the other supervised
release conditions. We therefore do not address the concurrence’s
suggestion that this court should “realign” its caselaw concerning
whether oral pronouncement of “standard” supervised release conditions
is required. See Concurrence at 24 n.1.
22 UNITED STATES V. REYES
any time . . . and without reasonable suspicion,” other
restrictions—including work, travel, and mental health
treatment requirements—similarly were not pronounced
orally yet implicate the range of significant interests that
supervised release terms impose as well as protect.
Above all, supervised release facilitates defendants’
successful and safe re-entry into society after imprisonment,
provide defendants with rehabilitation and treatment
opportunities, and enable victim restitution and security.
Correspondingly, failure to adhere to a release condition can
result in revocation, re-imprisonment, and even re-
prosecution. See FED. R. CRIM. P. 32.1; 18 U.S.C. § 3583(e).
It is in everyone’s interest—courts, the government,
defendants, society at large, and especially crime victims—
that each condition be articulated at sentencing, even
through adoption of proposed conditions in a presentence
report, unless the condition is one that is required by law.
And, not surprisingly, that is the law. 18 U.S.C § 3583 lists
required release conditions which must be imposed, by law,
and also gives sentencing courts authority to impose a
myriad of other conditions as long as these discretionary
condition are “reasonably related” to a defendant’s
circumstance and “involve[] no greater deprivation of liberty
than is reasonably necessary . . . .” 18 U.S.C. § 3583(d).
Requiring articulation of these discretionary restrictions
gives defendants an opportunity to object to them, so that
sentencing courts can confirm offense/offender relatedness
and narrow tailoring. Id. Individualized focus at sentencing,
therefore, not only benefits society by preventing
uninformed revocations while enhancing rehabilitation,
supervision, and societal safety but also is a statutory and
criminal rule-based imperative. See generally U.S.
Sentencing Comm’n, Federal Probation and Supervised
Release Violations, at 14 (2020) (over one hundred thousand
UNITED STATES V. REYES 23
federal offenders are on supervised release each year, and
approximately 10–15% violate release conditions).
As other courts of appeal perceive, however, the
Sentencing Guidelines subdivide further, offering policy
statements which recommend specific discretionary
conditions as “standard” or “special” or “additional.” These
sub-designations are distinct from Congress’s binary
treatment of release conditions as either required or
discretionary and courts err when they allow insertion of
“special” or “standard” restrictions into written judgments
for the first time—hence without oral pronouncement, much
less courts’ statutory duty to confirm relatedness and least
restrictiveness upon objection—on the theory that these
conditions are “contemplated,” “implied,” “suggested,” or
“recommended” in the Guidelines sufficiently for
defendants to be deemed on notice that they might appear
later in written judgments.
I am persuaded by the courts that have realigned this
crucial aspect of criminal sentencing with the above-
mentioned statutory imperative by requiring oral articulation
at sentencing of any supervised release condition that is
discretionary—i.e. not required by law—regardless of
whether a Sentencing Commission policy statement
classifies the condition as “standard” or “special.” See, e.g.
United States v. Kappes, 782 F.3d 828, 846 (7th Cir. 2015)
(“[A] condition’s label in the guidelines is ultimately
irrelevant. All discretionary conditions, whether standard,
special or of the judge’s own invention, require findings.”);
United States v. Anstice, 930 F.3d 907 (7th Cir. 2019);
United States v. Diggles, 957 F.3d 551, 557–559 (5th Cir.
2020) (en banc); United States v. Rogers, 961 F.3d 291 (4th
Cir. 2020); United States v. Boyd, 5 F.4th 550, 559–560 (4th
Cir. 2021).
24 UNITED STATES V. REYES
Adopting § 3583’s bright-line distinction between
required and discretionary release conditions would likely be
salutary in terms of appellate remedy as well. Caselaw is
uncertain as to when remand for a sentencing do-over may
occur at all and whether an entire sentence must be vacated
as a package or just the non-articulated supervised release
conditions. See United States v. Napier, 463 F.3d 1040,
1043–44 (9th Cir. 2006). 1 Further complication arises from
Rule 43’s presence requirement at sentencing, hence
presumably also at resentencing. See FED. R. CRIM.
P. 43(a)(3).
With these observations, I respectfully concur in the
judgment.
1
Interestingly, the Napier decision describes appellate authority to
remand for resentencing only when an oral sentence has ambiguity. 463
F.3d at 1043–44. Because ambiguity existed in Napier, “standard” and
“nonstandard” conditions alike were vacated and remanded for
resentencing. Id. at 1044. Accordingly, the court’s overbroad assertion
that “imposition of . . . mandatory and standard conditions is deemed to
be implicit in an oral sentence imposing supervised release,” id. at 1043(emphasis added), appears to me to be dicta. See Pierre N. Leval, Judging
Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. REV. 1249,
1256 (2006). To my knowledge, this court has never since, in a published
opinion, conflated statutorily required conditions with discretionary
ones, implying that both are “implicit” in oral pronouncements, even
though it has applied Napier’s overbroad dicta determinatively in dozens
of unpublished cases. I mention this not to dissent from the instant
remand for partial resentencing that we order here, which has separate,
binding precedent as authority, see United States v. Doe, 488 F.3d 1154,
1163 (9th Cir. 2007), but instead to suggest gently that this court has
been free to realign caselaw with § 3583’s distinction between required
and discretionary release conditions, as other courts have.