### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 17

- 40033

UNITED STATES OF AMERICA,

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 justic es discreetly handed it to one another.” 1 The obsession is global. C onsider the trials of Sir Marshall Hall, a n idolized barrister from Edwardian

era England. Jurors collapsed and judges wept at hi s magnetic oratory. Spectators crammed into dank courtrooms to hear the lurid details of gruesome

1 Paul Duggan, Washington Comes to a Stop , W ASH

. P OST (Oct. 4, 1995) , https://wapo.st/2RIQ1z7

. United States Court of Appeals Fifth Circuit 

### FILED October 12, 2018

Lyle W. Cayce Clerk Case: 17-40033 Document: 00514680098 Page: 1 Date Filed: 10/12/2018No. 17

- 40033

2 crimes. Many of his cases were so renowned they even had names, like the “Brides in the Bath.” 2 Electrifying criminal t rials are uncommonly significant

— and today , significantly uncommon

. Federal c riminal jury trials don’t happen much

anymore :

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

• A bout 47 percent of federal criminal appeals

— like this one

— are sentencing

- related. 4
Surprisingly, a bstruse sentencing dispute s don’t rivet public attention

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

- page Federal Sentencing Guidelines M anual (read: tome) as “complex.” 5 But in th is age of the vanishing criminal jury trial, when convictions result

o verwhelmingly from pleas, sentencing take s on outsiz ed importance.
T he 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? A dmittedly, our decisions are somewhat uneven as to what constitutes an opportunity to object,

2 See generally S ALLY S MITH , M ARSHAL H ALL : A L AW UNTO H IMSELF (Wildy, Simmonds & Hill 2016).
3 G LENN R. S CHMIDT & E LIZABETH J ONES , U.S. S ENTENCING C OMM ’ N , O VERVIEW OF F EDERAL C RIMINAL C ASES : F ISCAL Y EAR 2016 , at 94 (May 2017) (“In fiscal year 2016 the vast majority of offenders (97.3%) pleaded guilty.”).
4 Compare U.S. C OURTS , F EDERAL J UDICIAL C ASELOAD S TATI STICS 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 S OURCEBOOK OF F EDERAL S ENTENCING S TATISTICS 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 , A MAZON (Sept. 11, 2018), https://amzn.to/2RLedkA

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3 which in turn determines which standard of review applies (plain error v. abuse of discretion). Our holding: When a defendant had no opportun ity 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 me th 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

- Estr ada had ample time to review the PSR ; t he district court even gave him a two

- week extension to file objections

. I n that time, Rivas

- Estrada asked for a sen tence reduction, b ut his 35

- page filing never mentioned the special conditions. At sentencing, the court confirmed that Rivas

- Estrada had review ed the PSR with his lawyer . The court also made sure that he understood i t and that h is lawyer had no comments, changes, or objections to it

. The district cou rt 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] Pre sentence Report

. ” Mandatory (or standard) conditions need not be recited orally as they are “ i mplicit 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 Unite d States v. Torres

- Aguillar , 352 F.3d 934, 936 (5th Cir. 2003) (cleaned up)

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4 s pecial conditions of supervised release that were not pronounced orally at sentencing : 1. Rivas

- Estrada had to surrender himself for deporta tion a fter serving his time.

2. H e had to give requested financial information to his probation of ficer.

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

Rivas

- Estrada contends that the district court abused its discretion; h e argues that the written judgment conflicts with the oral pronouncement ; a nd he asks that we strike the special conditions from the written judgment. T he Government urges us to review for plain error since Riv as
- Estrada never objected. The G overnment also claims there’s no conflict between the written judgment and what was orally pronounced : “The writte n 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 fail ed 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 State s v. Bishop , 603 F.3d 279, 28 0

– 82 (5th Cir. 2010) (affirming, on plain

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

necessa ry 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)). Case: 17-40033 Document: 00514680098 Page: 4 Date Filed: 10/12/2018No. 17

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5 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 direct ed the defendant to pay the costs of that treatment and counseling. Springing costs on the defendant gave him no chance to object. 12 And i n 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 discus s them in hopes of providing bright

- lin e 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) ( holdin g 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). Case: 17-40033 Document: 00514680098 Page: 5 Date Filed: 10/12/2018No. 17

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6 special conditions. The dist rict court orally imposed two, b ut the written judgment con tained 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, t he district court may do more than the minimum. Take Ro uland

. 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 uni que 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 th e 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 rev iew 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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7 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, ” b ut 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.
R ecently, in Huor , we reviewed a special condition banning the defendant from living in or goin g 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 ordere d drug treatment, but the oral pronouncement didn’t. 32 These written judgments conflicted the oral pronouncement s 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. 20 06); 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). Case: 17-40033 Document: 00514680098 Page: 7 Date Filed: 10/12/2018No. 17

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8 To see if a written judgment broadened the oral pronouncement, it’s useful to compare t he 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 Omitti ng all special conditions makes it impossible to explain the ir 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 go od 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 c onflict

. 36 Since it effectuated the pronouncement’s function, the judgment wasn’t broader.
But here, the district court merely referenced the PSR. Again, i t never mentioned , even glancingly, any special conditions ( included in an a ppendix ) , 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. Case: 17-40033 Document: 00514680098 Page: 8 Date Filed: 10/12/2018No. 17

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9 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 bro adens the oral pronouncement. The two conflict. And t he 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. Case: 17-40033 Document: 00514680098 Page: 9 Date Filed: 10/12/2018