United States v. Griffin

Case: 21-50294 Document: 00516555626 Page: 1 Date Filed: 11/23/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 23, 2022
No. 21-50294
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Deshawn Dawayne Griffin,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:20-CR-332-1
Before Higginbotham, Higginson, and Oldham, Circuit Judges.
Per Curiam:*
We turn again to a written judgment with discretionary conditions of
supervised release not orally pronounced at sentencing. As the district court
adopted neither the presentence report nor a court standing order, the
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 21-50294
discretionary conditions in the written judgment conflict with the oral
pronouncement. So, we remand to the district court to amend the written
judgment. 1
I.
Deshawn Dawayne Griffin pleaded guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The
Presentencing Report (“PSR”) determined that Griffin’s base offense level
was 22 under U.S.S.G. § 2K2.1(a)(3) because Griffin’s offense involved a
qualifying firearm and Griffin had a prior felony conviction for aggravated
robbery, a crime of violence eligible for the enhancement. Due to Griffin’s
acceptance of responsibility, the offense level was lowered to 19. The
advisory guidelines range of imprisonment was for 37 to 46 months. At his
sentencing hearing, Griffin objected to the PSR only on the ground that his
Texas aggravated robbery conviction did not qualify as a crime of violence.
The district court overruled that objection and sentenced him to a within-
guidelines term of 37 months of imprisonment and three years of supervised
release. Griffin timely appeals.
II.
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.” 2 If the defendant had the
opportunity to object, but failed to do so, we review for plain error. 3 If there
1
Griffin does not challenge the third special condition, requiring mental health
treatment, which was requested by defense counsel.
2
United States v. Grogan, 977 F.3d 348, 352 (5th Cir. 2020).
3
Id.2
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was no opportunity for the defendant to object, we review for abuse of
discretion. 4 We first address whether Griffin had the opportunity to object.
“[A] defendant has a constitutional right to be present at
sentencing.” 5 In United States v. Diggles, this Court held that conditions of
supervised release are part of a defendant’s sentence and so must be
pronounced unless their imposition is mandatory, as required by
18 U.S.C. § 3583(d). 6 A district court may satisfy this pronouncement
requirement by adopting a list of recommended supervised release conditions
from a standing order, the PSR, or some other document, 7 but “the mere
existence of such a document is not enough for pronouncement.” 8 The
district court must ensure that the defendant has an opportunity to read and
review that list with counsel and must orally adopt that list when the
defendant is in court and can object. 9 “The pronouncement requirement is
not a meaningless formality” because it provides the defendant with notice
of the sentence and a chance to object. 10
A district court does not adequately notify a defendant of the
conditions to afford an opportunity to object where it fails to ask the
defendant if he reviewed the PSR and does not refer to a standing order or
4
Id.5
United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003); Fed. R. Crim. P.
43(a)(3).
6
957 F.3d 551, 559 (5th Cir.) (en banc), cert. denied, 141 S. Ct. 825 (2020).
7
Id. at 560–63.
8
Id. at 561 n.5.
9
Id. at 560–63.
10
Id. at 560.
3
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to mandatory and standard conditions. 11 But where the district court
confirms that the defendant has reviewed the PSR and announces that it is
adopting the PSR, which recommends the standard conditions, the
requirement is fulfilled. 12 Here, the district court confirmed that Griffin had
the opportunity to review the PSR with defense counsel. The PSR listed all
five special conditions and noted that they were “[i]n addition to the
mandatory and standard conditions of supervision adopted by the Court.”
But the district court never orally adopted either the PSR or the standing
order. The government argues that the district court discussed the
discretionary conditions of supervised release when it orally recommended
“the 500-hour substance abuse program, all available mental health
counseling and medications.” However the district court immediately
continued, “ . . . and vocational and academic opportunities, particularly the
CDL opportunity if the prison where you go has that.” This discussion was
turned to treatment that Griffin could receive while in prison, not the
conditions of his supervised release.
The question remains if asking whether the defendant reviewed the
PSR, which contains conditions of supervised release, with counsel is
sufficient notice such that he had an opportunity to object. “That
opportunity exists when the court notifies the defendant at sentencing that
conditions are being imposed.” 13 Here, that opportunity did not exist, as the
district court never stated that the PSR was in fact being adopted. We review
11
United States v. Jackson, No. 20-50922, 2022 WL 738668, at *2 (5th Cir. Mar. 11,
2022).
12
United States v. Martinez, 15 F.4th 1179, 1181 (5th Cir. 2021).
13
Diggles, 957 F.3d at 560.
4
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the imposition of these conditions for abuse of discretion; there is an abuse
of discretion when the court makes an error of law. 14
“If the district court fails to mention at sentencing a condition of
supervised release that must be pronounced, its inclusion in the written
judgment can create a conflict.” 15 Such a conflict is legal error and thus an
abuse of discretion. As the oral pronouncement controls, the written
judgments must be amended to conform to the oral pronouncement. 16 We
affirmed this yet again in United States v. Martinez, where en banc was sought
and denied. 17 Here, the conditions of Griffin’s supervised release were not
orally pronounced at sentencing. Although they are included in the PSR, the
PSR was never orally adopted. As this panel knows, we are bound by our
Court’s prior decisions, notably, United States v. Fields, and these
unpronounced conditions must be excised from the judgment. 18 We note that
14
In re Deepwater Horizon, 785 F.3d 986, 999 (5th Cir. 2015).
15
Jackson, 2022 WL 738668, at *2.
16
Id.; Diggles, 957 F.3d at 557.
17
No. 20-10307, 2022 WL 3692677, at *1–2 (5th Cir. Aug. 26, 2022).
18
977 F.3d 358, 366–67 (5th Cir. 2020); see also United States v. Rivas-Estrada, 906
F.3d 346, 348 (5th Cir. 2018) (“When a defendant had no opportunity to object to special
conditions (because they were unmentioned at sentencing), we review for abuse of
discretion, and any ‘unpronounced’ special conditions must, upon remand, be stricken
from the written judgment.”); Jackson, 2022 WL 738668, at *4 (“[U]npronounced,
unincorporated, and un-referenced conditions found only in Jackson’s written judgment,
although critical to effectuating the purposes of supervised release, are required to be
excised according to our existing precedent.”)
5
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on remand, “in certain circumstances the district court may later modify and
enlarge the conditions of supervised release.” 19
III.
Griffin also brings two claims that are foreclosed by this Court’s
precedent. First, Griffin argues that his prior Texas convictions for
aggravated robbery do not qualify as crimes of violence under guidelines
§ 2K2.1 and § 4B1.2. Griffin concedes that this issue is foreclosed by this
Court’s precedent but preserves this claim for further review. 20
Second, Griffin argues that his § 922(g)(1) conviction must be
reversed because that statute unconstitutionally extends federal control to
firearm possession that does not substantially affect interstate commerce.
Griffin concedes that this argument is foreclosed by United States v. De
Leon, 21 but preserves this claim for further review.
19
United States v. Chavez, No. 20-50550, 2022 WL 767033, at *5 (5th Cir. Mar. 14,
2022) (citing 18 U.S.C. § 3583(e); Fed. R. Crim. P. 32.1(c)).
20
Griffin had argued that after the Supreme Court’s decision in United States v.
Borden, convictions for robbery and aggravated robbery should not qualify as a crime of
violence under § 4B1.2, as they can be committed recklessly. 141 S. Ct. 1817, 1821–25
(2021). In United States v. Adair, we held that Texas robbery, even if committed with a
reckless mens rea, qualifies as a § 4B1.2 crime of violence because it fits within the
enumerated, generic offense of robbery. 16 F.4th 469, 471 (5th Cir. 2021). And in United
States v. Nava, we held that Borden did not overturn United States v. Santiesteban-
Hernandez, 469 F.3d 376 (5th Cir. 2006), abrogated on other grounds by United States v.
Rodriguez, 711 F.3d 541 (5th Cir. 2013) (en banc), because generic robbery does not require
the use of force against another, so the § 2K2.1 enhancement still applies. No. 21-50165,
2021 WL 5095976, at *1 (5th Cir. Nov. 2, 2021), cert. denied, 142 S. Ct. 1241 (2022).
21
170 F.3d 494, 499 (5th Cir. 1999).
6
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****
We VACATE in part Griffin’s sentence and REMAND to enable
the district court to amend its written judgment.
7
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Andrew S. Oldham, Circuit Judge, dissenting.
This case involves a question that our en banc court left unresolved
two years ago: What do we do when the written judgment in a criminal case
conflicts with the district court’s oral pronouncement during a sentencing
hearing? See United States v. Diggles, 957 F.3d 551, 563 n.11 (5th Cir. 2020)
(en banc) (“Given our holding that there is no pronouncement error, this
case does not afford us an opportunity to reconsider that rule.”). This
question has far-reaching implications because our docket teems with cases
where the sentencing judge says one thing and writes down something
slightly different.
For reasons I cannot understand, our post-Diggles precedents
generally prioritize spoken words over written ones. Today’s case is just the
latest example. The majority directs a victory for the defendant and orders
the unpronounced supervised-release conditions stricken from his judgment.
That conflicts with the rule—applicable in all, or virtually all, other legal
contexts—that the written judgment governs the parties’ rights and
obligations. And it bizarrely pairs a substantive remedy (a directed victory for
the defendant) with a procedural violation (failure to say something correctly
at sentencing).
I respectfully dissent.
I.
Deshawn Dawayne Griffin pleaded guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Presentence
Report (“PSR”) stated various special conditions and expressly incorporated
“the mandatory and standard conditions of supervision” in its district’s
standing order. Before the sentencing hearing, Griffin made no objections to
the supervised-release conditions in the PSR. At the sentencing hearing, the
district court confirmed that Griffin reviewed the PSR with his counsel and
8
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asked whether Griffin had any objections to the PSR. Again, Griffin had no
objections to the supervised-release conditions. Although the district court
discussed supervised release, it did not clearly announce that it was adopting
the PSR’s conditions. Those conditions appeared in the later-entered written
judgment.
Griffin timely appealed, arguing that we must order the district court
to conform the written judgment to the oral announcement of the sentence—
i.e., reduce the severity of Griffin’s supervised-release sentence by removing
the unpronounced conditions.
I respectfully disagree. Part II describes the irreconcilable tension in
our precedent regarding the nature of the right to be present at sentencing
and the appropriate remedy for violations of that right. Part III explains that
our court’s chosen remedy—a directed victory for the defendant—is
nonsensical. Part IV argues that a limited remand is a far superior alternative
remedy. Finally, Part V addresses the panel majority’s decision, which
exacerbates our jurisprudential mess.
II.
We sometimes describe the right to be present at sentencing as
procedural; sometimes substantive. I (A) explain this dichotomous
understanding of the presence right and (B) describe the various remedies we
sometimes attach to violations of it.
A.
Our en banc decision in Diggles exemplifies our contradictory
descriptions of the right to be present. There, we described the right in both
procedural and substantive terms. For example, we used procedural lingo like
this: “The pronouncement requirement is . . . part of the defendant’s right
to be present at sentencing, which in turn is based on the right to mount a
9
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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.”
957 F.3d at 560 (emphases added). In other places, however, we used
substantive language by characterizing the right as one to have the written
judgment match the oral announcement: “If the in-court pronouncement
differs from the judgment that later issues, what the judge said at sentencing
controls.” Id. at 557; see also id. at 563 n.11 (making clear that statements in
the opinion involved only the right as opposed to the remedy “[g]iven [its]
holding that there is no pronouncement error”). And we’ve suggested that a
defendant’s right to be present at sentencing somehow also triggers a
substantive right against resentencing (a quasi-Double-Jeopardy right): “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.” Id. at 563.
This tension in Diggles—between procedural and substantive
characterizations of the presence right—existed in our precedent before the
decision and has led to further confusion and disagreement since it. For
example, we’ve continuously regurgitated the substantive characterization
from Diggles without any justification. See, e.g., United States v. Tanner, 984
F.3d 454, 456 (5th Cir. 2021) (“Accordingly, where the oral pronouncement
and written judgment conflict, the oral pronouncement controls.”); United
States v. Castaneda, No. 20-40290, 2021 WL 5397601, at *1 (5th Cir. Nov. 17,
2021) (per curiam); United States v. Garza-Gonzalez, No. 20-40115, 2021 WL
4889805, at *1 (5th Cir. Oct. 19, 2021) (per curiam); United States v.
McDougal, No. 20-61073, 2021 WL 3553767, at *4 (5th Cir. Aug. 11, 2021). 1
1
And it’s led to reductions to sentences outside the supervised-release-conditions
context. See, e.g., United States v. Cook, 308 F. App’x 792, 794 (5th Cir. 2009) (per curiam)
(“At sentencing, the district court orally pronounced a sentence of 51 months of
10
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B.
The fundamental tension on the nature of the right has led to another
tension on the proper remedy for violations of that right. Our cases currently
recognize three different remedies: (1) remand with instructions for the
district court to conform the written judgment (“directed-victory remand”);
(2) remand for complete resentencing (“full remand”); and (3) remand for
limited resentencing (“limited remand”). The first is substantive, while the
second and third are procedural. The first option (directed-victory remand)
is substantive relief because conformance reduces the severity of the
sentence in the written judgment rather than gives the defendant the
imprisonment. The written judgment provides for a sentence of 63 months of
imprisonment. . . . Because the written judgment in this case conflicts with the oral
pronouncement of judgment, the oral pronouncement controls. Therefore, we remand the
case for the district court to amend its written judgment to conform to its oral sentence.”
(quotation omitted)); United States v. Sandoval, 421 F. App’x 467, 468 (5th Cir. 2011) (per
curiam) (oral pronouncement said “run concurrently with any [sentence] imposed by the
state court based on the same conduct as that involved in the instant case” and that the
“sentence would be followed by a five-year term of supervised release”; written judgment
said “concurrently” and “a life term of supervised release”); United States v. Wicker, 791
F. App’x 444, 445 (5th Cir. 2019) (per curiam) (oral pronouncement said it would but the
written judgment “eliminat[ed] [the defendant’s] ability to have his federal sentence run
concurrently with any state sentence stemming from the same underlying conduct as the
federal offense”); United States v. Garcia, 322 F.3d 842, 846–47 & n.5 (5th Cir. 2003) (oral
pronouncement was “three years of supervised release”; written judgment was for “five
years of supervised release”); United States v. Moore, 224 F. App’x 383, 383–84 (5th Cir.
2007) (per curiam) (oral pronouncement was three years of supervised release; written
judgment was for five years of supervised release); United States v. Shaw, 920 F.2d 1225,
1231 (5th Cir. 1991) (orally pronouncement is 71 months of imprisonment; written
judgment is 72 months of imprisonment); Schurmann v. United States, 658 F.2d 389, 389–
91 (5th Cir. 1981) (not specifying if sentence was consecutive or concurrent in oral
pronouncement but stating consecutive in written judgment); United States v. Gonzalez-
Rivas, 486 F. App’x 506, 506–07 (5th Cir. 2012) (per curiam) (oral pronouncement said no
fine if removed from country; written judgment stated that the defendant had to pay a fine
regardless of removal); United States v. Salas, No. 21-11066 (5th Cir. Aug. 30, 2022); United
States v. Reyna, No. 22-10375 (5th Cir. July 21, 2022).
11
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opportunity to be present at sentencing and object to the conditions. The
second option (full remand) and third option (limited remand) are procedural
relief because those options give the defendant another chance to be present
at sentencing.
Our precedent regularly orders substantive relief—namely, the
directed-victory remand—based solely on the substantive characterization of
the right. See, e.g., United States v. Hungerford, No. 21-50278, 2022 WL
118961, at *1 (5th Cir. Jan. 12, 2022) (per curiam) (observing “[l]egion
precedent” striking unpronounced conditions). I’ve seen no other
justification for the directed-victory remand other than reliance on these
substantive characterizations.
III.
There are numerous problems with the substantive characterization
of the right to be present at sentencing and the substantive remedy of
directing a victory for the defendant. I first (A) explain why the substantive
characterization and the directed-victory remand conflict with historical
practice under the common law. I next (B) explain why it contravenes the
structure of our federal legal system. I then (C) explain why the directed-
victory remand makes our precedent and the Federal Rules of Criminal
Procedure internally inconsistent. I last (D) highlight the circuit split on these
issues.
A.
History establishes two key propositions. First, a defendant generally
has the right to be present at an oral pronouncement of his sentence, and that
right is procedural. Second, the actual sentence is the one imposed by a
written judgment.
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Start with the right. A fundamental tenet of English law was that, for
felonies, the defendant had a right to be present at sentencing. See, e.g., Rex
v. Harris, 90 Eng. Rep. 1119, 1119–20 (K.B. 1702) (“we cannot give any such
judgment (in the absence of the party)” and “I never knew of a judgment for
a corporal punishment, unless the party were present”); Duke’s Case, 90
Eng. Rep. 1120, 1120 (K.B. 1702) (“Judgment cannot be given against any
man in his absence for a corporal punishment; there is no such precedent.”). 2
This right, however, did not prevent resentencing to correct imperfect oral
announcements of sentences. See, e.g., Rex v. Fletcher, 168 Eng. Rep. 682, 683
(Crown. 1803) (“All the judges agreed that the omission in the passing of the
sentence might have been remedied by the judge going again into court, after
adjournment, from the lodgings, and ordering the prisoner to be again
brought up, and then passing the proper judgment; as the sentence may be
corrected or altered at any time during the assizes.” (emphasis added)). Early
American law maintained this common-law right. See, e.g., Ball v. United
States, 140 U.S. 118, 129 (1891) (“At common law no judgment for corporal
punishment could be pronounced against a man in his absence.”). 3 And the
2
See also 2 Sir Matthew Hale, The History of the Pleas of the
Crown 401 (1736) (The “defendant must be called to say what he can, why judgment
should not be given against him, and thereupon judgment may be given.”); 1 William
Blackstone, Commentaries on the Laws of England 375 (1753); Joseph
Chitty, A Practical Treatise on the Criminal Law *693 (5th ed. 1847)
[hereinafter Chitty] (“WHEN any corporal punishment is to be inflicted on the
defendant, it is absolutely necessary that he should be personally before the court at the
time of pronouncing the sentence.”).
3
See also Schwab v. Berggren, 143 U.S. 442, 448 (1892) (“The personal presence of
the accused from the beginning to the end of a trial for felony, involving life or liberty, as
well as at the time final judgment is rendered against him, may be, and must be assumed to
be, vital to the proper conduct of his defense, and cannot be dispensed with.”); Chitty
at *752 (“So if it does not appear that the defendant was in court at the time sentence of
death was passed, the judgment will be considered as unduly given.”); id. at *721 (“But it
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Founders protected it in the Fifth Amendment’s Due Process Clause. See,
e.g., Diggles, 957 F.3d at 557 (“[T]he right to be present at proceedings that
lack testimony (usually true of sentencings) comes from the Fifth
Amendment’s Due Process Clause.” (citing United States v. Gagnon, 470
U.S. 522, 526 (1985) (per curiam))). 4
Next, the practice of a written judgment. In England, the defendant’s
sentence after oral announcement was entered in the record along with the
fact that the defendant was present for the oral announcement. See Chitty
at *720 (“When the judgment is pronounced, it ought, with all the preceding
matter, to be entered on the record.”). The sentencing judge could, under
certain circumstances, amend the sentence after oral pronouncement—even
after the judge entered the written judgment. In King v. Price, 102 Eng. Rep.
1310 (K.B. 1805), for example, the court originally sentenced the defendant
to one month in prison. It later determined that the sentence was improper,
so it recalled the prisoner, vacated the original sentence, and imposed a newer
and harsher one (six months in prison and a 20-pound fine). Id. at 1310–13;
see also Chitty at *753 (“[T]he court may alter their own judgment, any
time in the same term in which it is passed, and either pass another, or
remedy a defect in the former.” (quotation omitted)). 5 The same was true at
must appear that the defendant was in court at the time of pronouncing the judgment, or
the whole will be erroneous.” (quotation omitted)).
4
See also United States v. Denson, 963 F.3d 1080, 1087–88 (11th Cir. 2020)
(“Although this Court has not defined the precise overlap of Rule 43 and the Due Process
Clause, we have concluded that the right to be present under Rule 43 is at least as broad as
the right under the Due Process Clause. Thus, where Rule 43 does not require a
defendant’s presence, there is no due process concern.” (quotation omitted)).
5
See also Chitty at *753–54 (“[T]he court may alter their own judgment, any
time in the same term in which it is passed, and either pass another, or remedy a defect in
the former. And the justices at sessions may amend their judgment during the same
sessions, because in consideration of law, their sitting is but one day, but not at any
subsequent period, unless they professedly adjourn. But no amendment can be made by any
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common law in the United States. See, e.g., Ex parte Lange, 85 U.S. 163, 167
(1873) (“The general power of the court over its own judgments, orders, and
decrees, in both civil and criminal cases, during the existence of the term at
which they are first made, is undeniable.”); Commonwealth v. Henry
Weymouth, 84 Mass. 144, 145 (1861) (“It seems to have been recognized as
one of the earliest doctrines of the common law, that the record of a court
may be changed or amended at any time during the same term of the court in
which a judgment is rendered.”); Cole v. State, 10 Ark. 318, 325 (1850) (“If,
however the verdict was delivered in the presence of the defendant, and the
irregularity consists simply in pronouncing sentence in his absence, the
consequence would not necessarily be the awarding of a new trial, but only a
reversal of the judgment and a remanding of the cause with instructions to
proceed to pronounce judgment in accordance with the verdict after having
inquired of the defendant whether he had anything further to say why the
judgment of the Court should not be then pronounced.”).
Against this backdrop, the Supreme Court promulgated the Federal
Rules of Criminal Procedure. Rule 43 provides the defendant’s right to “be
present at . . . sentencing,” subject to certain exceptions. Fed. R. Crim.
P. 43(a)(3), (b). And Rule 32 requires the district court to enter a written
“judgment of conviction” that imposes the “sentence.” Fed. R. Crim. P.
32(k)(1) (“In the judgment of conviction, the court must set forth the plea, the
jury verdict or the court’s findings, the adjudication, and the sentence. If the
authority, when once the term or the session is over, and the judgment solemnly entered
on the record. Mere ministerial acts may, indeed, at any time be amended. And any matter
not of record may be amended by the record, if a mistake has arisen in the former[.]”
(quotation omitted)); id. at *722 (“In cases of misdemeanors, it is clear the court may
vacate the judgment passed, before it becomes matter of record, and may mitigate, or pass
another, even when the latter is more severe. And the justices at sessions have the same
power during the sessions . . . unless adjournment be entered on the role.”).
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defendant is found not guilty or is otherwise entitled to be discharged, the
court must so order. The judge must sign the judgment, and the clerk must
enter it.” (emphases added)). And the Rules, like the common law, provide
circumstances in which the written judgment can be amended. See, e.g., Fed.
R. Crim. P. 35 (correcting or reducing a sentence in a written judgment);
Fed. R. Crim. P. 36 (correcting a clerical error in a written judgment).
Other federal rules also reflect the distinction between the oral
announcement of a sentence and the written judgment. Take Federal Rule of
Appellate Procedure 4(b)(2). It specifies that when a defendant files a notice
of appeal “after the court announces . . . sentence . . . but before the entry of
the judgment or order,” the notice “is treated as filed on the date of and after
the entry.” Fed. R. App. P. 4(b)(2). Thus, the premise of Rule 4(b)(2) is
that the oral announcement of a sentence critically differs from the entering
of the written judgment. See Manrique v. United States, 137 S. Ct. 1266, 1273
(2017) (emphasizing the distinction).
In sum, history establishes two things. First, the defendant’s right to
be present at sentencing is procedural. After all, today, the right is protected
by the Federal Rules of Criminal Procedure and the Due Process Clause.
Second, the law has long recognized two distinct parts of a criminal sentence:
(1) the oral pronouncement of the sentence in the defendant’s presence and
(2) the written judgment that imposes that sentence. The written judgment is
the alpha.
The directed-victory remand conflicts with both propositions that
history establishes. First, the directed-victory remand hinges on the
substantive characterization of the right. Otherwise, the remand would lead
to the nonsensical result of not vindicating the right that’s violated. Directing
victory does not give the defendant the opportunity to be present at
sentencing and object to the conditions (procedural); instead, it reduces the
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severity of the sentence in the written judgment (substantive). And that
doesn’t properly vindicate the right. We wouldn’t order a not-guilty verdict
for a procedural mistake at trial; we’d order a new trial. We wouldn’t order a
defendant released if the court made a math mistake in its Guidelines
calculation; we’d order a new sentencing hearing.
So too here. We shouldn’t reduce the severity of a sentence for a
procedural error; we should give the opportunity to resentence in accordance
with the procedural right. I can imagine no reason to treat violations of the
presence right as violations of substantive due process. And as should go
without saying, there is no reason to think that the quasi-Double Jeopardy
view of the presence right is “deeply rooted in this Nation’s history and
tradition, and implicit in the concept of ordered liberty, such that neither
liberty nor justice would exist if they were sacrificed.” Washington v.
Glucksberg, 521 U.S. 702, 720–21 (1997) (quotation omitted); see also Dobbs v.
Jackson Women’s Health Org., 142 S. Ct. 2228, 2246 (2022).
Moreover, the directed-victory remand treats the written judgment as
the omega. In so doing, we undermine the district court’s power to control
its own sentence and its own written judgment. This starkly conflicts with
historical practice.
B.
The distinction between oral pronouncements and written judgments
fits with fundamental aspects of our federal legal system. Article III gives a
federal court the “judicial Power” to decide “Cases” and “Controversies”
brought by proper parties who are entitled to invoke our jurisdiction. U.S.
Const. art. III, § 2. Federal courts exercise the judicial power and decide a
case or controversy by entering a final and enforceable judgment, subject to
revision only by a superior federal court. See, e.g., Hayburn’s Case, 2 U.S. (2
Dall.) 408 (1792); United States v. Ferreira, 54 U.S. (13 How.) 40 (1851).
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That’s why it’s the judgment—not an oral pronouncement of a particular
determination—that has a binding effect that settles the dispute before the
court. See, e.g., Texas v. Biden, 20 F.4th 928, 951 (5th Cir. 2021) (“A
judgment, not the opinion announcing that judgment, has a binding effect that
settles the dispute before the court.” (emphasis added)). 6
In our legal system, we treat written judgments differently than oral
pronouncements of initial determinations. As an appellate court, when a
defendant challenges his sentence, we review the district court’s judgment
and ultimately affirm, reverse, modify, or vacate that judgment. See Jennings
v. Stephens, 574 U.S. 271, 277 (2015); Acadian Diagnostic Lab’ys, LLC v.
Quality Toxicology, LLC, 965 F.3d 404, 414 (5th Cir. 2020). We also say that
initial decisions are merged into the judgment and that the record at the time
of the initial decision is superseded when we get to the judgment. See, e.g.,
Meadaa v. K.A.P. Enterprises, LLC, 756 F.3d 875, 879 (5th Cir. 2014) (“[A]ll
interlocutory orders of the district court leading up to the judgment merge
into the final judgment . . . .” (quotation omitted)); Banister v. Davis, 140 S.
Ct. 1698, 1708 (2020) (explaining in the habeas context that a Rule 59(e)
“motion’s disposition then merges into the final judgment that the prisoner
6
See also, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219 (1995) (“[A]
judgment conclusively resolves the case because a ‘judicial Power’ is one to render
dispositive judgments.” (quotation omitted)); Jennings v. Stephens, 574 U.S. 271, 277
(2015) (“Courts reduce their opinions and verdicts to [written] judgments precisely to
define the rights and liabilities of the parties.”); Acadian Diagnostic Lab’ys, LLC v. Quality
Toxicology, LLC, 965 F.3d 404, 414 (5th Cir. 2020) (“[T]he judicial power vested by Article
III is the power to render dispositive judgments.” (quotation omitted)); Ex parte Watkins,
28 U.S. (3 Pet.) 193, 202–03 (1830) (“The judgment of a court of record whose jurisdiction
is final, is as conclusive on all the world as the judgment of this court would be. It is as
conclusive on this court as it is on other courts. It puts an end to inquiry concerning the
fact, by deciding it.”); William Baude, The Judgment Power, 96 Geo. L.J. 1807, 1844
(2008) (describing the “historical answer” to this question: “Judgments become binding
law, not opinions. Opinions merely explain the grounds for judgments, helping other people
to plan and order their affairs.”).
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may take to the next level”). 7 And preclusion doctrines hinge on
judgments—not on oral pronouncements. See Langley v. Prince, 926 F.3d 145,
163–67 (5th Cir. 2019) (en banc).
Thus, at the end of the day, it’s the judgment that really matters. And
any “rule that contravenes this structure . . . is peculiar,” to say the least.
Jennings, 574 U.S. at 277.
The directed-victory remand, however, contravenes fundamental
tenets of our legal system along with centuries of precedent in our country
and in England. The directed-victory remand remarkably treats the words
spoken in a hearing as somehow taking precedence over words written in a
judgment. Never mind that the judicial power vested by Article III is the
power to render judgments. See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S.
211, 219 (1995) (emphasizing the “fundamental principle” that the “‘judicial
Power’ is one to render dispositive judgments” (quotation omitted)).
C.
Next, the directed-victory remand makes our precedent and the
Federal Rules of Criminal Procedure internally inconsistent.
For one thing, Diggles itself proves that oral pronouncements do not
control over written judgments. There, our en banc court held that written
judgments control when they contain “mandatory” conditions that were
unmentioned in the oral pronouncement. So in Diggles itself, we endorsed
7 See also 15B Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 3914.28 (2d ed.) (“Upon appeal from a final judgment
concluding the action, earlier summary dispositions merge in the judgment and are
reviewable.”); Ortiz v. Jordan, 562 U.S. 180, 184 (2011) (“The order retains its
interlocutory character as simply a step along the route to final judgment. Once the case
proceeds to trial, the full record developed in court supersedes the record existing at the
time of the summary-judgment motion.” (quotation omitted)).
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following the written judgment over the oral announcement in at least some
circumstances.
For another, our precedent routinely holds that oral pronouncements
in other areas do not warrant directed verdicts for defendants. For example,
imagine that the district judge orally pronounces at sentencing an offense
level of 38 when, in fact, the offense level is 37. Do we direct victory for the
defendant and order the district judge to reduce the sentence? Of course not.
E.g., United States v. del Carpio Frescas, 932 F.3d 324 (5th Cir. 2019); United
States v. Rodriguez-Pena, 957 F.3d 514 (5th Cir. 2020); United States v. Kelley,
40 F.4th 276 (5th Cir. 2022); United States v. Sanchez-Arvizu, 893 F.3d 312,
318 (5th Cir. 2018); United States v. Blanton, 684 F. App’x 397, 400 (5th Cir.
2017) (per curiam).
Moreover, under the federal rules, defendants don’t have to be
present when the judge corrects or reduces a sentence by amending the
written judgment. See Fed. R. Crim. P. 43(b)(4). In these situations, the
written judgment has conditions that plainly differ from the oral
pronouncement. Yet we don’t require the written judgment amended to
conform with the oral pronouncement.
The federal rules also allow a district court to modify and enlarge the
conditions of supervised release. See Fed. R. Crim. P. 32.1. The majority
recognizes this fact. See ante, at 5–6. So even when we’re insisting that the
oral pronouncement controls over the written judgment, as we do again
today, we don’t really mean it. That’s because the district court can just go
back and reimpose the stricken conditions.
You might think all of this mitigates the effects of our directed-victory
precedents. But in my view, it militates them. That’s because we are
subverting long-held legal propositions regarding the judicial power and the
law of judgments to accomplish nothing.
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D.
Finally, this circuit should reconsider the directed-victory remand
because there is a circuit split with at least the Second and Fourth Circuits.
Start with the Second Circuit. That circuit allows limited remands to
remedy presence-right violations, including violations from unpronounced
discretionary conditions included in the written judgment. See, e.g., United
States v. Handakas, 329 F.3d 115, 116 (2d Cir. 2003) (remanding “for the
limited purpose of affording [the defendant] an opportunity to contest the
occupational restriction. Whether after such opportunity the restriction
should be reimposed will be within the District Court’s discretion.”); United
States v. Grebinger, No. 20-1025-CR, 2021 WL 5142709, at *4 (2d Cir. Nov.
5, 2021) (“Because there is a discrepancy between the oral pronouncement
and the judgment, we will remand for the limited purpose of allowing the
district court to address the forfeiture issue.”).
Next, the Fourth Circuit. That circuit allows remands for
resentencing (a full remand) to remedy presence-right violations, including
violations from unpronounced discretionary conditions included in the
written judgment. See, e.g., United States v. Singletary, 984 F.3d 341, 346 (4th
Cir. 2021) (“[T]he remedy for this error is not . . . simply to strike the
financial conditions from the written judgment. Rather, . . . it is to vacate the
sentence and remand for the district court to resentence [the defendant].”).
Our precedent directly conflicts with that of the Second and Fourth
Circuits.
IV.
I would follow the Second Circuit and order a limited remand. A
limited remand merely gives the district court the choice: The court can either
(1) amend the written judgment to conform with the oral pronouncement or
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(2) hold a new sentencing hearing that conforms with the defendant’s right
to be present at sentencing. The Supreme Court has expressly encouraged us
to use the limited remand as a remedy for procedural sentencing errors. See
Molina-Martinez v. United States, 578 U.S. 189, 203–04 (2016). And for good
reason: The limited remand is “a well-worn tool in our toolkit.” Rodriguez-
Pena, 957 F.3d at 523 (Oldham, J., concurring).
Here, its application provides at least two advantages over the other
approaches.
First, limited remands will increase the accuracy of sentences. After
all, they’re “tools for dispelling doubt.” Id. at 520. When a written judgment
conflicts with the oral pronouncement, there’s doubt as to why: The conflict
could be a mistake; it could be intentional. The sentencing judge is most likely
to know which. That’s because “a sentencing judge is the world’s leading
expert on his own thought process.” Id. at 521. “And that’s the key question
here: What was driving this judge’s decision to impose this sentence for this
defendant?” Ibid. (quotation omitted).
Second, limited remands give procedural relief that actually remedies
the procedural right. When the sentencing judge receives a limited remand,
she can resentence the defendant if she erred in the result by giving the
defendant notice and an opportunity to object. Providing notice and
opportunity is procedural relief that actually remedies the procedural right.
Of course, if the judge decides to conform the written judgment to the oral
sentence, this might look like substantive relief. But it’s not. Such
conformance reflects either that the written judgment contained an error or
that the sentencing judge decided to resentence the defendant to the reduced
sentence, which does not require the defendant’s presence.
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V.
Even when our precedent purports to understand the presence right
as procedural, our remedies are still incoherent. I (A) briefly describe several
of our recent precedential opinions in this area. I then (B) explain how the
majority’s decision in this case exacerbates confusion in this circuit.
A.
Let’s start with our most recent en banc decision. In Diggles, we held
that the defendant’s right to be present at sentencing included a
“pronouncement requirement.” 957 F.3d at 556–57. We then tried to create
a “bright-line rule” for when the sentencing judge must orally pronounce a
condition before the defendant at the hearing: The sentencing judge needn’t
say anything for “mandatory” conditions—i.e., conditions required by
statute—but generally must say something for “discretionary” conditions.
Id. at 557–59. The reason for this distinction, we said, is that objections to
mandatory conditions would be “futile” but objections to discretionary
conditions could be fruitful. Id. at 558–59.
We also tried to explain what exactly constitutes pronouncement of a
discretionary condition. We concluded that the pronouncement requirement
is met when the defendant had “notice of the sentence and an opportunity to
object.” Id. at 560; see also id. at 563 (“The thread running through each of
these rulings is notice and an opportunity to object.”).
In the wake of Diggles, we’ve repeatedly found no error where the
district court failed to orally pronounce supervised-release conditions—so
long as the defendant had notice of them. Take, for example, United States v.
Martinez, 15 F.4th 1179 (5th Cir. 2021). There, the district court issued a
“written judgment” with “17 standard conditions listed in the Western
District of Texas’s Order on Conditions of Probation and Supervised
Release”—i.e., the district’s “standing order.” Id. at 1180–81. It did so
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without expressly “cit[ing] the district court’s standing order when it orally
imposed the ‘standard conditions.’” Ibid. We concluded that it was
“frivolous” to argue that there was a “pronouncement problem.” Ibid. Even
though the court failed to cite—let alone expressly incorporate—the
standing order at the sentencing hearing, we highlighted that it (1) adopted
the PSR, which “recommended the ‘mandatory and standard conditions of
supervision’” and (2) said that “it was imposing ‘standard conditions.’”
Ibid. This was enough to make any presence-right challenge “frivolous”
because the District’s “standing order” provided “‘advance notice’” to
counsel and thus “ample opportunity to object” at the sentencing hearing.
Ibid. (emphasis added).
Or consider United States v. Vargas, 23 F.4th 526 (5th Cir. 2022) (per
curiam). There, we extended Martinez and determined that there was no
violation of the defendant’s right to be present when the sentencing judge
merely said that “supervised release will be for a period of four years under
the Court’s mandatory, standard, and the special conditions” and did not
expressly adopt a document that recommended such conditions. Id. at 528(quotation omitted). That oral reference alone, we concluded, provided the
defendant with sufficient notice and an opportunity to object.
Finally, consider United States v. Aguilar-Cerda, 27 F.4th 1093 (5th
Cir. 2022). In that case, we determined that it was frivolous to contend that
the district court “plainly err[ed] when it referred to its previous written
standing order and ordered that ‘Defendant shall comply with the standard
conditions contained in this judgment’ without reciting those conditions
during the sentencing hearing.” Id. at 1095.
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B.
Here, however, the panel refuses to follow Diggles, Martinez, Vargas,
and Aguilar-Cerda. Today’s decision thus further exacerbates the
incoherence of our precedent in this area.
Here, as in Diggles, Martinez, Vargas, and Aguilar-Cerda, it’s
undisputable that Griffin had notice of the supervised-release conditions.
The PSR stated all the special conditions in the written judgment and
expressly invoked “the mandatory and standard conditions of supervision
adopted by the Court” in its district’s standing order. Cf. Diggles, 957 F.3d
at 560 (“The PSR is the centerpiece of sentencing.”). And the district court
confirmed that Griffin reviewed the PSR with his counsel and asked whether
Griffin had any objections to the PSR. Griffin thus had “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.” Id. at
560–61 (quotation omitted).
Griffin also had the opportunity to object to each condition. This is
clear from the fact that Griffin made numerous written objections to other
parts of the PSR before the hearing. Then at the hearing, Griffin’s counsel
said that all but one of those objections “ha[d] been resolved” before the
hearing and argued the one remaining objection. See ROA.259–60 (“Our
objections have been resolved except that . . . we argue that [a prior robbery
conviction] is not a basis for a two-level increase in this case.”); ante, at 2.
Griffin’s counsel even requested one of the special conditions at the hearing,
which is why on appeal, Griffin doesn’t challenge that condition. See Blue Br.
at 26 (“At sentencing, defense counsel requested that the district court place
Griffin on supervised release and require him to attend counseling for his
PTSD . . . . Accordingly, Griffin does not challenge imposition of that condition.”
(emphasis added) (quotation omitted)); see also ROA.269–71.
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On top of all that, the sentencing judge implicitly adopted the
recommended conditions of the PSR. Near the end of the hearing, and after
Griffin’s counsel proposed a supervised-release condition, the judge
explained that “under federal supervised release, if you violate the rules, you
go back to prison for two more years.” ROA.274 (emphasis added). This, at
the very, least put Griffin and his counsel on notice that there were
supervised-release conditions and to either ask for clarification on those
conditions or object to the ones in the PSR. Soon after, the judge asked if any
party had any additional objects. All said no. Taken together, Griffin had
notice and an opportunity to object to the supervised-release conditions.
So why does the majority conclude that there was no pronouncement?
To my colleagues, the defendant lacked notice and an opportunity to object
because “the district court never orally adopted either the PSR or the
standing order.” Ante, at 4. As a matter of commonsense, this conclusion is
strange. Griffin clearly had notice and opportunity to object long before the
hearing. That’s because the PSR put Griffin on notice to all the supervised-
release conditions in the written judgment, Griffin confirmed he reviewed
the PSR with counsel, Griffin submitted written objections before the
hearing, and Griffin pressed one of those objections at the hearing.
But even focusing just on what was said at the hearing, I don’t see how
today’s holding can be squared with our precedent.
Take Martinez: Why is saying “standard conditions” enough to make
any challenge “frivolous” because the defendant had an opportunity “to ask
for more specificity about the conditions,” 15 F.4th at 1181, but mentioning
that supervised release will be under “the rules” not enough? Or take Vargas:
Why is saying that “supervised release will be . . . under the Court’s
mandatory, standard, and the special conditions” enough, 23 F.4th at 528
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(quotation omitted), but saying that supervised release will be under “the
rules” not?
Perhaps our court is hunting for magic words? Here, the judge used
the word “rule” instead of the legalese “condition.” And the judge did not
qualify his supervised-release sentence with other legalese like “standard”
or “mandatory” or “special.” But I don’t see why that matters because our
en banc court derided the use of such labels. See Diggles, 957 F.3d at 557 (“But
these lines are not so clear cut. . . . We can do better.”). And we’ve repeatedly
denied that there is a magic-words requirement. See, e.g., United States v.
Garcia, 983 F.3d 820, 824 (5th Cir. 2020) (“There are no magic words
required to satisfy this oral pronouncement obligation.” (quotation
omitted)).
* * *
At bottom, our precedent in this area is a mess. We have no coherent
explanation for whether the right to be present at sentencing is a substantive
or procedural one. We have no coherent explanation for what constitutes a
violation of the presence right. And we have no coherent explanation for what
remedy properly addresses a violation of the presence right. And while we’re
stumbling about and awarding directed victories for criminal defendants,
we’re undermining the judicial power to issue judgments and hundreds of
years of Anglo-American legal tradition. Until our en banc court takes a case
to correct these inconsistencies, I respectfully dissent.
27