     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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                                       No. 17-40033
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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                                        No. 17-40033
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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                                       No. 17-40033
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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                                       No. 17-40033
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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                                      No. 17-40033
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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                                       No. 17-40033
                                             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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                                     No. 17-40033
      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.
                                            9
