United States Court of Appeals

for the Fifth Circuit ___________ 

No. 21-50185

___________ 

United States of America,

Plaintiff—Appellee,

versus

Marshall Lee Braddy,

Defendant—Appellant.

______________________________ 

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:19-CR-264-7 

______________________________ 

Before Elrod, Oldham, and Wilson, Circuit Judges.

Andrew S. Oldham, Circuit Judge:

Marshall Lee Braddy pled guilty to conspiring to distribute cocaine 

and methamphetamine. See 21 U.S.C. §§ 846, 841(b)(1)(B). The district 

court sentenced Braddy to 10 years imprisonment and a 5-year term of 

supervised release. The written judgment listed ten statutorily mandated 

conditions of supervised release. See 18 U.S.C. §§ 3013(a)(2)(A), 3583(d), 

3664(k). The written judgment also included seventeen conditions from a 

district-wide standing order that the district court did not mention at 

sentencing. 

United States Court of Appeals

Fifth Circuit

FILED

August 26, 2021

Lyle W. Cayce

Clerk
No. 21-50185

2

The parties agree that the district court’s judgment conflicts with our 

decision in United States v. Diggles, 957 F.3d 551, 559 (5th Cir. 2020) (en 

banc). There we held that supervised-release conditions imposed by statute 

need not be pronounced orally at sentencing because any objection to them 

would be futile. Id. at 557. But “discretionary” conditions must be orally 

pronounced in the defendant’s presence at sentencing so that he has an 

opportunity to object. Id. at 557–59. We agree with the parties that Braddy 

did not have an opportunity to object to the seventeen conditions mentioned 

in the district court’s standing order but unmentioned at sentencing. We 

therefore find error under Diggles.

The only question is what to do about that error. In some cases, we 

have remanded solely for the district court to conform the judgment to the 

oral pronouncement by striking the unpronounced discretionary conditions. 

See, e.g., United States v. Omigie, 977 F.3d 397, 407 (5th Cir. 2020). In other 

cases, we have remanded for resentencing when the defendant established a 

Diggles error. See, e.g., United States v. Brown, No. 20-40210, 2021 WL 

1157621, at *3 (5th Cir. Mar. 25, 2021). And in still other cases involving nonDiggles-based variances between the oral pronouncement and the written 

judgment, we’ve ordered limited remands that allow the district court to 

choose whether to conform the previous judgment or to resentence the 

defendant under a new judgment. See, e.g., United States v. Taylor, 973 F.3d 

414, 419–21 (5th Cir. 2020).

Here, we think the limited remand makes sense. The district court 

should have discretion either to strike the unpronounced condition or to give 

the defendant the opportunity to object to it at a new sentencing hearing. 

Either of those remedies can cure the Diggles problem. The first cures it by 

removing the condition. The second cures it by ensuring that the defendant 

is present in the courtroom for an oral pronouncement of his sentence with a 

full opportunity to object to any and every discretionary part of that sentence.
No. 21-50185

3

IT IS THEREFORE ORDERED that the Appellee’s motion for 

a limited remand to the district court is GRANTED for the district court,

within sixty days, either to vacate the challenged conditions of supervised 

release or to hold a new sentencing hearing to conform with the requirements 

of Diggles.

IT IS FURTHER ORDERED that Appellee’s alternative unopposed 

motion for an extension of fourteen (14) days to file its brief upon the denial 

of remand is DENIED AS MOOT.