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Fifth Circuit Holds Special Conditions in PSR Appendix but Not Orally Pronounced by District Court Must Be Removed From Sentence Where Conflict With Written Judgment

by David Reutter

The Fifth Circuit Court of Appeals held that where a defendant did not have an opportunity to object to special sentencing conditions because they were not announced at sentencing, it conducts an abuse of discretion review and any “unpronounced” special conditions must be stricken from the written judgment on remand.

That holding was made in an opinion written by Judge Don R. Willett. It came in an appeal brought by Jonathan Rivas-Estrada. It was, as Judge Willett noted, one of the 47 percent of cases that comprise criminal sentencing appeals.

Rivas-Estrada pleaded guilty to various charges related to his involvement in “the meth business.” The district court gave him a two-week extension to object to the presentence report that was filed after he pleaded guilty. His pleading made no mention of the three special conditions contained in the appendix to the report.
The district court sentenced Rivas-Estrada to “hard time” and five years’ supervised release. The court orally pronounced that Rivas-Estrada must “comply with the mandatory and special conditions that have been adopted and set forth in [his] Presentence Report (PSR).” Other than that passing reference to special conditions, the district court did not make a specific oral pronouncement of the conditions. Rivas-Estrada appealed. 

The Fifth Circuit framed the issue on appeal as follows: “May a district court impose special conditions of supervised release in it written judgment without orally pronouncing them at the sentencing hearing?”

The Court explained that the governing “standard of review is critical because, by setting our scrutiny level, it helps determine whether we order changes to the judgment. If Rivas-Estrada had no opportunity to object to the special conditions, we review for abuse of discretion. If he did but failed to object, plain error applies.” It then concluded that abuse of discretion applies to the facts of this case. 

According to the Court, the “‘opportunity to object’ requirement isn’t formalistic.” As a minimum requirement, the district court must enumerate all special conditions in order to allow the defendant a meaningful opportunity to object. The Court instructed that simply “referencing a PSR that lists special conditions (here, in the appendix) isn’t enough. Alone, it doesn’t put the defendant on notice of which conditions the court will impose.” 

Based on the actions of the district court in this case, the Court admonished “the district court fell below our minimum” requirement because it failed to “orally enumerate the special conditions.” Consequently, the Court stated it must review the proceedings “for abuse of discretion whether there’s a conflict between the oral pronouncement and the written judgment.”

The Fifth Circuit explained that it has repeatedly “held that if a written judgment clashes with the oral pronouncement, the oral pronouncement controls.” This is based upon the defendant’s right to be present at sentencing rooted in the Sixth Amendment’s Confrontation Clause. 

The Court had no difficulty concluding that the oral pronouncement and written judgment conflict with each other. The district court’s written judgment clearly broadened its oral pronouncement. When they conflict, “the oral pronouncement controls,” according to the Court. 

Accordingly, the Court vacated Rivas-Estrada’s sentence in part and remanded for the district court to amend the written judgment by removing the three unpronounced special conditions. See: United States v. Rivas-Estrada, 906 F.3d 346 (5th Cir. 2018). 

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