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A Night To Remember

Fifth Circuit Clarifies How ‘Pronouncement Requirement’ Applies to Supervision Conditions

The U.S. Court of Appeals for the Fifth Circuit clarified how the requirement that a district court pronounce its sentence in the presence of the defendant applies to conditions of supervised release.

After Rosie, Walter, and Anita Diggles were convicted by a jury of fraud in connection with their receipt of hurricane-relief funds, the U.S. District Court for the Eastern District of Texas imposed conditions of supervised release in addition to terms of imprisonment. The court confirmed that the Diggles had reviewed the Presentence Report (“PSR”) with their attorneys and then stated: “Looking at the Revised Presentence Investigation Report, those conditions are found [under the heading] ‘Supervision Conditions Recommendation.’ Those are no longer just a recommendation; those are the conditions and special instructions that I have adopted.”

Under the heading referred to by the district court were two subheadings labeled “Mandatory Conditions” and “Special Conditions.” The Special Conditions read, in part:

“You must pay any financial penalty that is imposed by the judgment.

“You must provide the probation officer with access to requested financial information....

“You must not incur new credit charges or open additional lines of credit....

“You must not participate in any form of gambling....”

The Diggles appealed, arguing, inter alia, that the district court failed to pronounce the conditions of their supervised release.

The Court agreed to hear the appeal en banc because the Circuit’s caselaw was confusing and created “a granular distinction at best and a backwards one at worst.”

For example, in United States v. Rivas-Estrada, 906 F.3d 346 (5th Cir. 2018), the Court vacated supervised release conditions because the sentencing judge told the defendant that the conditions recommended in the PSR would be imposed but did not recite them one-by-one. But in United States v. Rouland, 726 F.3d 728 (5th Cir. 2013), the Court upheld conditions when the district court merely admitted a Probation Office memo recommending the conditions but did not address them further.

Additionally, the Fifth Circuit had held that pronouncement was not required for what the Sentencing Guidelines called “mandatory” and “standard” conditions, United States v. Torres-Aguilar, 352 F.3d 934 (5th Cir. 2003), but pronouncement was required for “discretionary” and “special” conditions, United States v. Vega, 332 F.3d 849 (5th Cir. 2003).

Yet a condition might be labeled “special,” but the circumstances may make it tantamount to a “standard” condition and obviate the need for an oral pronouncement. Torres-Aguilar. To complicate matters even further, the Fifth Circuit had held that sometimes when a condition that is labeled “special” was made “standard” by the circumstances, it may again be made “special” when the judgment labels it as such. United States v. Ramos, 765 F. App’x 70 (5th Cir. 2019).

The Court acknowledged that the case law on the issue is confusing and stated “We can do better.” In providing much-needed clarity on the issue, the Court began with the source of the pronouncement requirement that emanates from a defendant’s due process right to be present at sentencing. United States v. Huff, 512 F.2d 66 (5th Cir. 1975). It is inherent in the right and opportunity to defend. Snyder v. Massachusetts, 291 U.S. 97 (1934). In the context of conditions of supervised release, a defendant may defend by objecting to discretionary conditions, but there was little a defendant could do to defend against mandatory conditions. So the Court concluded that the confusion could be eliminated by tethering the pronouncement requirement to 18 U.S.C. § 3583(d) — the statute that distinguishes between required and discretionary conditions.

The Court announced the following rule: If a condition is one of those listed in 18 U.S.C. 3583(d) that the district court “shall” impose, then oral pronouncement of the condition by the court is not required. Any other conditions are discretionary and require oral pronouncement in the presence of the defendant.

Having clarified the standard for application of the pronouncement requirement to conditions of supervised release, the Court turned to the instant appeal. The Court determined that the latter three of the Special Conditions imposed upon the Diggles were discretionary and required pronouncement. But there was no error because the district court had orally adopted the contents of the PSR. The Diggles had confirmed they had reviewed the PSR. When the district court orally adopted the PSR, the Diggles had opportunity to object to the conditions.

Related legal case

United States v. Diggles

 

 

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