# United States Court of Appeals **f or 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 ClerkNo. 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 pro nounced 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 B r addy did not have an opportunity to object to the seventeen conditions mentioned in the district court’s standing ord er 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 unpro nounced 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 non

Diggles

- 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, w e think the limited remand makes sense. Th e 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 e nsuring 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 A ppellee’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**

.