by Douglas Ankney

The U.S. Court of Appeals for the Ninth Circuit, sitting en banc, held that U.S. District Courts must either orally pronounce all discretionary conditions of supervised release, including those referred to as “standard” in U.S. Sentencing Guidelines (“U.S.S.G.”) § 5D1.3(c), in the presence of the defendant at sentencing or provide the conditions in full in writing prior to sentencing and incorporate them by reference during the sentencing, overruling United States v. Napier, 463 F.3d 1040 (9th Cir. 2006), to the extent that Napier held to the contrary.

Cynthia Leon Montoya pleaded guilty to two counts of knowingly and intentionally importing 500 grams or more of cocaine and methamphetamine into the U.S. Her presentence investigation report (“PSI”) stated that a five-year term of supervised release following her custodial sentence was “required and recommended.” The PSI recommended that “the defendant abide by the mandatory and standard conditions of supervision,” as well as four additional conditions set forth in full in the PSI.

At sentencing, the U.S. District Court for the Southern District of California orally imposed the four conditions set forth in the PSI. But in its later written judgment, the District Court included both the mandatory conditions set forth in 18 U.S.C. § 3583(d) and the “standard” (discretionary) conditions of supervised release recommended in U.S.S.G. § 5D1.3(c) in addition to the four conditions it had orally pronounced.

Montoya timely appealed, arguing that “the district court violated her due process right to be present at sentencing by not orally pronouncing the standard conditions of supervised release set forth in § 5D1.3(c) during the sentencing hearing.” A three-judge panel rejected Montoya’s argument, but the Ninth Circuit granted her petition for rehearing en banc.

The Court observed “a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730 (1987). “Although ‘[t]he constitutional right to presence [during a critical stage of a criminal proceeding] is rooted to a large extent in the Confrontation Clause of the Sixth Amendment,’ the Supreme Court has recognized that in situations ‘where the defendant is not actually confronting witnesses or evidence against him’ the right to presence ‘is protected by the Due Process Clause.’” United States v. Gagnon, 470 U.S. 522 (1985) (per curiam). “While the right to be present is ‘an essential condition of due process,’ it is not absolute.” Snyder v. Massachusetts, 291 U.S. 97 (1934). That is, “although the defendant may have a right ‘to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge,’ the defendant has no right to be present ‘when presence would be useless, or the benefit but a shadow.’” Id.

The due process right to be present applies to sentencing. Gardner v. Florida, 430 U.S. 349 (1977). A “sentence is imposed at the time it is orally pronounced.” United States v. Aguirre, 214 F.3d 1122 (9th Cir. 2000). “For this reason, ‘if there is a conflict between the sentence orally imposed and written judgment, the oral pronouncement, as correctly reported, controls.’” Id. Sentencing typically involves imposition of a term of supervised release, and it is mandatory when required by statute. 18 U.S.C. § 3583(a). When imposing a term of supervised release, the District Court is required to impose the mandatory conditions of 18 U.S.C. § 3583(d).

But District Courts may also impose discretionary conditions of supervised release that “it considers to be appropriate” for successful supervision of a defendant. United States v. LaCoste, 821 F.3d 1187 (9th Cir. 2016). In addition to discussing the mandatory conditions set forth in 18 U.S.C. § 3583(d), the U.S.S.G. provide three different lists of discretionary conditions: (1) 13 “standard” conditions that “are recommended for supervised release,” U.S.S.G. § 5D1.3(c); (2) eight “special” conditions that “may otherwise be appropriate in particular cases,” § 5D1.3(d); and (3) six “additional” conditions that “may be appropriate on a case-by-case basis.” § 5D1.3(e). And the District Court “may impose other” discretionary conditions of supervised release not listed. § 5D1.3(b).

A defendant’s due process right to be present at a critical stage is not violated when a District Court imposes the mandatory conditions of supervised release only in its written order because a defendant cannot defend against them, i.e., his presence would be useless, because the imposition of those conditions is required by statute. Napier.

But when a District Court imposes conditions not mandated by 18 U.S.C. § 3583(d), the situation is different. Because these conditions are discretionary, the defendant has a due process right to be present to defend against them, disputing that the condition is necessary or disputing how the condition is imposed. United States v. Diggles, 957 F.3d 551 (5th Cir. 2020) (en banc). “Therefore, a district court’s failure to pronounce discretionary conditions of supervised release violates a defendant’s due process right to be present at a critical stage of the criminal proceedings.” Campbell v. Rice, 408 F.3d 1166 (9th Cir. 2005) (en banc).

In Napier, the Ninth Circuit had held that a District Court need not pronounce the mandatory conditions of § 3583(d) nor the conditions “recommended by the Guidelines as standard” under § 5D1.3(c). The Napier Court had incorrectly concluded that the “standard” conditions of § 5D1.3(c) were “necessarily included” in an oral sentence imposing supervised release just as the mandatory conditions were necessarily included; therefore, the District Court could later set forth in full the mandatory and standard conditions in its written order.

But the Court explained that the “standard” conditions—even though generally imposed in almost all sentences—are, in fact, discretionary, so a defendant may argue against each or any of them. Therefore, the Court joined the Fourth, Fifth, Seventh, Tenth, and D.C. Circuits in holding that “for purposes of determining whether a defendant has a due process right to be present for sentencing (specifically, for oral pronouncement of a condition of supervised release), what matters is whether a condition is mandatory or discretionary under 18 U.S.C. § 3583(d). See United States v. Geddes, 71F.4th 1206 (10th Cir. 2023); United States v. Matthews, 54 F.4th 1 (D.C. Cir. 2022); United States v. Rogers, 961 F.3d 291 (4th Cir. 2020); Diggles; United States v. Anstice, 930 F.3d 907 (7th Cir. 2019).

As a consequence of its holding, the Court overruled Napier to the extent that it ruled that a District Court need not pronounce the standard conditions of supervised release at sentencing.

The Court explained that District Courts may orally recite in full the conditions at sentencing, or they may write out the conditions in full in the PSI or other document, provide them to the defendant prior to sentencing, and then incorporate them by reference during the oral pronouncement at sentencing.

The Court concluded: “In sum, we hold that a district court must orally pronounce all discretionary conditions of supervised release in the presence of the defendant. We further hold that this pronouncement requirement is satisfied if the defendant is informed of the proposed discretionary conditions before the sentencing hearing and the district court orally incorporates by reference some or all of those conditions, which gives the defendant an opportunity to object.”

Turning to the present case, the Court applied the newly announced bright-line rule and noted that the District Court did not orally pronounce the discretionary standard supervised release conditions at sentencing but imposed those conditions later in its written order, depriving Montoya of any opportunity to object. Thus, the Court held that her due process right to be present during the pronouncement of the conditions was violated.

Accordingly, the Court vacated those conditions and remanded for the limited purpose of resentencing on only those supervised release conditions. See: United States v. Montoya, 82 F.4th 640 (9th Cir. 2023) (en banc).  

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