United States v. Jonathan Rivas-Estrada

Case: 17-40033 Document: 00514680098 Page: 1 Date Filed: 10/12/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 17-40033 October 12, 2018

Lyle W. Cayce

UNITED STATES OF AMERICA, Clerk

Plaintiff–Appellee,

v.

JONATHAN RIVAS-ESTRADA,

Defendant–Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

Before JOLLY, ELROD, and WILLETT, Circuit Judges.

DON R. WILLETT, Circuit Judge:

America is captivated by sensational criminal trials. There’s a Trial of

the Century virtually every decade. When the O.J. Simpson verdict was

announced nearly a quarter-century ago, the entire Nation pressed pause.

Even at the staid Supreme Court, “where decorum is everything,” a messenger

“passed a note about the Simpson verdicts to the grand mahogany bench, and

the justices discreetly handed it to one another.” 1 The obsession is global.

Consider the trials of Sir Marshall Hall, an idolized barrister from Edwardian-

era England. Jurors collapsed and judges wept at his magnetic oratory.

Spectators crammed into dank courtrooms to hear the lurid details of gruesome

1 Paul Duggan, Washington Comes to a Stop, WASH. POST (Oct. 4, 1995),

https://wapo.st/2RIQ1z7.

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crimes. Many of his cases were so renowned they even had names, like the

“Brides in the Bath.” 2

Electrifying criminal trials are uncommonly significant—and today,

significantly uncommon. Federal criminal jury trials don’t happen much

anymore:

• Roughly 97 percent of federal criminal offenders plead guilty. 3

• About 47 percent of federal criminal appeals—like this one—are

sentencing-related. 4

Surprisingly, abstruse sentencing disputes don’t rivet public attention.

Even the Supreme Court acknowledges as much, charitably describing the 600-

page Federal Sentencing Guidelines Manual (read: tome) as “complex.” 5 But in

this age of the vanishing criminal jury trial, when convictions result

overwhelmingly from pleas, sentencing takes on outsized importance.

The question in this sentencing appeal is simply stated: May a district

court impose special conditions of supervised release in its written judgment

without orally pronouncing them at the sentencing hearing? Admittedly, our

decisions are somewhat uneven as to what constitutes an opportunity to object,

2 See generally SALLY SMITH, MARSHAL HALL: A LAW UNTO HIMSELF (Wildy,

Simmonds & Hill 2016).

3 GLENN R. SCHMIDT & ELIZABETH JONES, U.S. SENTENCING COMM’N, OVERVIEW OF

FEDERAL CRIMINAL CASES: FISCAL YEAR 2016, at 94 (May 2017) (“In fiscal year 2016 the vast

majority of offenders (97.3%) pleaded guilty.”).

4 Compare U.S. COURTS, FEDERAL JUDICIAL CASELOAD STATISTICS 2017 tbl.B-1

(2017), http://www.uscourts.gov/sites/default/files/data_tables/fjcs_b1_0331.2017.pdf (listing

total number of criminal cases across all federal circuits), with 2017 SOURCEBOOK OF

FEDERAL SENTENCING STATISTICS tbl.55 (2017), https://www.ussc.gov/sites/default/files/pdf/

research-and-publications/annual-reports-and-sourcebooks/2017/Table55.pdf (listing types

of criminal appeals—“sentence only,” “sentence and conviction,” etc.—across all federal

circuits).

5 Molina-Martinez v. United States, 136 S. Ct. 1338, 1342 (2016). The Manual has a

one-star rating on Amazon. The lone reviewer laments, “My copy is printed upside down,”

adding, “I am fairly disappointed.” Lakshmi, Customer Review, AMAZON (Sept. 11, 2018),

https://amzn.to/2RLedkA.

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which in turn determines which standard of review applies (plain error v.

abuse of discretion). Our holding: 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.

I

Jonathan Rivas-Estrada was in the meth business. When Homeland

Security busted him, he pleaded guilty to various felony charges. This is where

things get sticky.

Before sentencing, the probation officer issued a presentence report

(PSR)—standard fare. The appendix to the PSR had one page of special

supervised-release conditions. Rivas-Estrada had ample time to review the

PSR; the district court even gave him a two-week extension to file objections.

In that time, Rivas-Estrada asked for a sentence reduction, but his 35-page

filing never mentioned the special conditions. At sentencing, the court

confirmed that Rivas-Estrada had reviewed the PSR with his lawyer. The court

also made sure that he understood it and that his lawyer had no comments,

changes, or objections to it.

The district court then sentenced Rivas-Estrada. Besides hard time, the

court imposed five years of supervised release. In closing, the court stated that

Rivas-Estrada must “comply with the mandatory and special conditions that

have been adopted and set forth in [his] Presentence Report.” Mandatory (or

standard) conditions need not be recited orally as they are “implicit in the very

nature of supervised release.” 6 But special conditions require a specific oral

pronouncement. Here, the district court’s written judgment contained three

6 United States v. Torres-Aguillar, 352 F.3d 934, 936 (5th Cir. 2003) (cleaned up).

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special conditions of supervised release that were not pronounced orally at

sentencing:

1. Rivas-Estrada had to surrender himself for deportation after

serving his time.

2. He had to give requested financial information to his probation

officer.

3. He had to participate in, and pay for, drug testing and treatment.

Rivas-Estrada contends that the district court abused its discretion; he

argues that the written judgment conflicts with the oral pronouncement; and

he asks that we strike the special conditions from the written judgment. The

Government urges us to review for plain error since Rivas-Estrada never

objected. The Government also claims there’s no conflict between the written

judgment and what was orally pronounced: “The written judgment merely

clarified the sentencing court’s oral pronouncement without adding to it.”

II

The standard of review is critical because, by setting our scrutiny level,

it helps determine whether we order changes to the judgment. 7 If Rivas-

Estrada had no opportunity to object to the special conditions, we review for

abuse of discretion. 8 If he did but failed to object, plain error applies. 9

Abuse of discretion applies here. The “opportunity to object” requirement

isn’t formalistic. It’s practical. That’s why in some unpublished cases, we’ve

7 Compare United States v. Bishop, 603 F.3d 279, 280–82 (5th Cir. 2010) (affirming,

on plain-error review, a special condition requiring mental health treatment “as deemed

necessary and approved by the probation officer”), with United States v. Franklin, 838 F.3d

564, 566–67 (5th Cir. 2016) (vacating, under the abuse-of-discretion standard, an identical

condition).

8 United States v. Mudd, 685 F.3d 473, 480 (5th Cir. 2012); Torres-Aguilar, 352 F.3d

at 935.

9 United States v. Huor, 852 F.3d 392, 397–98 (5th Cir. 2017) (citing United States v.

Salazar, 743 F.3d 445, 448 (5th Cir. 2014)).

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called it a “meaningful opportunity to object.” 10 The point is to give fair notice.

For example, in Warden, 11 the district court pronounced special conditions of

drug treatment and counseling. Yet the judgment also directed the defendant

to pay the costs of that treatment and counseling. Springing costs on the

defendant gave him no chance to object. 12 And in Hudson, an unpublished

opinion cited by Rivas-Estrada, we held that the district court abused its

discretion by not “ask[ing] any targeted questions about supervised-release

conditions.” 13 Instead, the court “merely asked Hudson general and routine

questions about the PSR, only a small portion of which was devoted to

recommending” special conditions. 14 Our caselaw demands more—

notwithstanding our unpublished Cox opinion cited by the Government. 15

At minimum, the district court must orally enumerate each special

condition. Otherwise, the defendant has no meaningful opportunity to object.

Merely 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.

Consider Bigelow. 16 There, we found it problematic that the defendant

didn’t know “at sentencing [that the] special conditions would be imposed later

in the written judgment.” 17 And in Morin, 18 the PSR recommended several

10 E.g., United States v. Reyes, 734 F. App’x 944, 947–48 (5th Cir. 2018); United States

v. Hudson, 625 F. App’x 686, 689 (5th Cir. 2015). We ordinarily do not cite unpublished

opinions, which carry no precedential weight. But since the unpublished cases cited by both

parties suggest uncertainty about what constitutes an opportunity to object, we discuss them

in hopes of providing bright-line guidance for future litigants.

11 United States v. Warden, 291 F.3d 363 (5th Cir. 2002).

12 Id. at 365 n.1.

13 Hudson, 625 F. App’x at 688.

14 Id.

15 United States v. Cox, 672 F. App’x 506, 506–07 (5th Cir. 2017) (holding that

referencing the PSR provides the defendant an opportunity to object).

16 United States v. Bigelow, 462 F.3d 378 (5th Cir. 2006).

17 Id. at 382.

18 United States v. Morin, 832 F.3d 513 (5th Cir. 2016).

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special conditions. The district court orally imposed two, but the written

judgment contained an extra condition from the PSR. So the defendant had no

chance to object. 19 PSRs merely show what the probation officer thinks is

appropriate. They don’t convey the court’s intent.

Of course, the district court may do more than the minimum. Take

Rouland. 20 In open court, the Government introduced a memo from the

probation officer that recommended nine special conditions of supervised

release. When asked if he had any objections to the exhibit, defense counsel

answered, “No objections.” This was a unique chance to object. So we applied

plain-error review and affirmed the written judgment. 21 In our unpublished

Reyes opinion, 22 we also reviewed for plain error because of unique facts: The

district court imposed special conditions from the PSR. Yet the court had the

PSR re-read to the defendant during the sentencing—giving him, as we noted,

“a unique and ‘meaningful opportunity to object, in open court, to the special

conditions that the district court later imposed in its written judgment.’” 23

But for Rivas-Estrada, the district court fell below our minimum. It

didn’t orally enumerate the special conditions. And unlike in Rouland and

Reyes, there was no unique chance to object. So we review for abuse of

discretion whether there’s a conflict between the oral pronouncement and the

written judgment.

19 Id. at 515, 518–19.

20 United States v. Rouland, 726 F.3d 728 (5th Cir. 2013).

21 Id. at 730, 733–34.

22 United States v. Reyes, 734 F. App’x 944 (5th Cir. 2018).

23 Id. at 948 (quoting Hudson, 625 F. App’x at 690)).

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III

We have repeatedly held that if a written judgment clashes with the oral

pronouncement, the oral pronouncement controls. 24 As we’ve explained, this is

based on the defendant’s right to be present at sentencing. 25 And that comes

from the Sixth Amendment’s Confrontation Clause. 26

Here, the written judgment cannot be squared with the oral

pronouncement. Under our caselaw, there’s a conflict when the written

judgment broadens the pronounced requirements of supervised release. 27

Some conflicts are straight-forward. In Mudd, the district court pronounced

special conditions of “drug and alcohol treatment instead of testing,” but it then

imposed testing anyway. 28 This was a conflict. 29 Yet there can also be a conflict

when the district court simply imposes a written condition it didn’t even

mention at sentencing.

Recently, in Huor, we reviewed a special condition banning the

defendant from living in or going to places that minors visit unless he had his

probation officer’s permission. 30 That conflicted with the oral pronouncement

since the court didn’t announce the condition at sentencing. 31 And in Martinez,

we found a conflict when the written judgment ordered drug treatment, but

the oral pronouncement didn’t. 32 These written judgments conflicted the oral

pronouncements because they were broader than the oral pronouncements.

24 E.g., Mudd, 685 F.3d at 480; United States v. Mireles, 471 F.3d 551, 557–58 (5th

Cir. 2006); Torres-Aguilar, 352 F.3d at 935.

25 Morin, 832 F.3d at 519; Torres-Aguilar, 352 F.3d at 935; United States v. Vega, 332

F.3d 849, 852 (5th Cir. 2003).

26 Bigelow, 462 F.3d at 381 (citing United States v. Gagnon, 470 U.S. 522, 526 (1985)).

27 E.g., Mireles, 471 F.3d at 558 (citing United States v. Wheeler, 322 F.3d 823, 828

(5th Cir. 2003); United States v. Moreci, 283 F.3d 293, 299–300 (5th Cir. 2002)).

28 Mudd, 685 F.3d at 480.

29 Id.

30 Huor, 852 F.3d at 404.

31 Id.

32 United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001).

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To see if a written judgment broadened the oral pronouncement, it’s

useful to compare the pronouncement’s expressed purposes to the written

judgment. In Hudson, for example, we emphasized that the district court failed

to mention the special conditions in the PSR, “much less explain

why . . . special conditions would be appropriate.” 33 Omitting all special

conditions makes it impossible to explain their purposes; having no explained

purposes suggests a broadened written judgment.

Yet not all unpronounced conditions create conflicts. First, we’ve made

clear that “explicit reference to each and every standard condition . . . is not

essential to the defendant’s right to be present at sentencing.” 34 Second, in

some cases we found no conflict when courts imposed costs associated with

special conditions. Warden is a good illustration: We found no conflict despite

the new written condition to pay the costs of the orally pronounced drug-

treatment condition. 35 Similarly, in Mireles, we found that different wordings

between the written judgment and pronouncement created no conflict. 36 Since

it effectuated the pronouncement’s function, the judgment wasn’t broader.

But here, the district court merely referenced the PSR. Again, it never

mentioned, even glancingly, any special conditions (included in an appendix),

and so it couldn’t explain their purposes. Nor were the new conditions mere

costs for pronounced conditions. Since there were no pronounced special

conditions at all, there were no pronounced functions; so the new conditions

had no functions to further. For these reasons, the district court’s written

judgment broadened the oral pronouncement.

33 Hudson, 625 F. App’x at 687.

34 Vega, 332 F.3d at 853 n.8 (quotation omitted).

35 Warden, 291 F.3d at 365.

36 Mireles, 471 F.3d at 559.

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Plus, our recent opinion in Rouland 37—despite the Government’s

argument—bolsters our conclusion. True, in that case we reviewed for plain

error, and the defendant lost. But still, we noted that there in fact was “a

conflict between the oral sentence and the written judgment in [that] case.” 38

We just reviewed more deferentially because of one-off circumstances, namely

the defendant’s unique chance to object to the special conditions.

In sum, the written judgment against Rivas-Estrada broadens the oral

pronouncement. The two conflict. And the oral pronouncement controls.

* * *

We VACATE in part Rivas-Estrada’s sentence and REMAND for the

district court to amend its written judgment by removing the three

unpronounced special conditions.

37 Rouland, 726 F.3d at 734.

38 Id.

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