9/13/23: En banc decision regarding the procedure for imposing supervised release conditions

In United States v. Montoya, --- F.4th ---, No. 21-50129 (9th Cir. 2023) (en banc), the Court considered whether a district court must orally pronounce all discretionary conditions of supervised release, including those referred to as “standard” in U.S.S.G. § 5D1.3(c), in order to protect a defendant’s due process right to be present at sentencing.  The Court held in the affirmative. 

Because a defendant has a right to be present at sentencing “to the extent that a fair and just hearing would be thwarted by his absence,” Snyder, 291 U.S. at 108, it follows that a defendant has the right to be present during the oral pronouncement of conditions of supervised release to the extent “his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against” the condition, id. at 105–06. 

A defendant’s due process right to be present at a critical stage is not violated if the district court imposes mandatory conditions of supervised release only in the written judgment. See Napier, 463 F.3d at 1043. Because these conditions are required under 18 U.S.C. § 3583(d), a defendant cannot defend against them, see Diggles, 957 F.3d 14 USA V. MONTOYA at 558, and so a defendant’s presence during the oral pronouncement of mandatory conditions “would be useless, or the benefit but a shadow,” Snyder, 291 U.S. at 106–07.13 

The situation is different when a court imposes a condition that is not mandated by 18 U.S.C. § 3583(d) and is thus discretionary. Because district judges enjoy “wide latitude” to impose non-mandatory conditions of supervised release, United States v. Weber, 451 F.3d 552, 557 (9th Cir. 2006), which is constrained only by the requirements of 18 U.S.C. § 3583(d)(1)–(3), the defendant has a due process right to be present to defend against them, Snyder, 291 U.S. at 105.

A defendant’s right to be present for the imposition of a condition of supervised release to which a defendant could raise a defense applies to any condition imposed by the district court that is not mandated by statute, without regard to whether the Guidelines label this condition “standard” under § 5D1.3(c) or “special” under § 5D1.3(d). Although the “standard” conditions might be “boilerplate” in form, Napier, 463 F.3d at 1043, the district court retains full discretion over the decision to impose them, subject only to the requirements of 18 U.S.C. § 3583(d)(1)–(3), based on its individualized assessment of the defendant.

We therefore overrule Napier to the extent it held that a district court need not orally pronounce the standard conditions recommended by § 5D1.3(c) at the sentencing hearing.

In reaching this conclusion, we join five of our sister circuits in holding that, for purposes of determining whether a defendant has a due process right to be present for sentencing (specifically, for the 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).  

If a condition is mandatory, then a defendant need not be present for its oral pronouncement. If a condition is discretionary, the district court must orally pronounce it in the presence of the defendant, without regard to how it is classified by the Guidelines. This bright-line rule ensures that a defendant’s right to be present at sentencing is protected and more faithfully adheres to the text of § 3583(d).

We agree with our sister circuits that the district court may satisfy the oral pronouncement requirement when imposing discretionary conditions of supervised release at the sentencing hearing in two different ways. The district court can recite each condition it elects to impose. Alternatively, where the defendant has been informed of the proposed conditions of supervised release in advance of sentencing, the court can incorporate those conditions by reference at the hearing.

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. 

In this case, the limited remand approach is appropriate. We vacate only the conditions of supervised release that were referred to as the “standard conditions” in the written sentence but were not orally pronounced. 

Remand is required so that the district court can cure its error by orally pronouncing any of the standard conditions of supervised release that it chooses to impose and by giving Montoya a chance to object to them. Because the failure to pronounce those conditions is the only sentencing error—the district court made adequate findings supporting the reasonableness of the custodial sentence and properly imposed the mandatory conditions and orally pronounced special conditions—we exercise our discretion “to remand to the district court for the limited purpose of” reconsidering the supervised release conditions we have vacated herein.