United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued August 25, 2022 Decided September 6, 2022

No. 22-3021

UNITED STATES OF AMERICA,

APPELLEE

v.

KEITH MATTHEWS, ALSO KNOWN AS BANG, ALSO KNOWN AS 

BAIN, ALSO KNOWN AS BANE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cr-00203-6)

Celia Goetzl, Assistant Federal Public Defender, argued 

the cause for appellant. With her on the appellant’s 

Memorandum of Law and Fact was A.J. Kramer, Federal 

Public Defender.

Daniel J. Lenerz, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the appellee’s Memorandum 

of Law and Fact were Chrisellen R. Kolb, Elizabeth H. 

Danello, and George P. Eliopoulos, Assistant U.S. Attorneys.

Before: WILKINS, KATSAS, and RAO, Circuit Judges.
2

Opinion for the Court filed by Circuit Judge KATSAS.

KATSAS, Circuit Judge: After Keith Matthews violated his 

supervised release conditions, the district court placed him in 

home detention and later imposed a revocation sentence of 

imprisonment and a new term of supervised release. Matthews 

contends that the court lacked authority to impose both home 

detention and imprisonment for the same violations, but he 

waived this argument below. Matthews also contends that the 

court’s written judgment improperly contains various 

discretionary conditions of supervised release that were not 

orally pronounced at sentencing. We agree.

I

Matthews was convicted of unlawfully possessing a 

firearm as a felon. The district court sentenced him to 

imprisonment followed by a term of supervised release. As 

conditions for his release, the court prohibited Matthews from 

using illegal drugs and required him to undergo drug testing. 

Soon after his release, Matthews failed three drug tests and 

skipped several more.

At a revocation hearing in November 2021, Matthews 

conceded the accuracy of the failed tests. He denied missing 

any other tests and sought information about them from the 

Probation Office. Based on Matthews’s admitted drug use, the 

district court proposed putting him in home detention 

temporarily, while the parties tried to resolve their dispute

about the number of missed tests. The court further stated that 

it would sentence Matthews only later, after determining the 

full extent of his violations. The court asked whether 

proceeding in this way was acceptable to the defense. 

Matthews’s counsel answered that it was. The parties 

eventually stipulated that Matthews had failed three drug tests 

and skipped others scheduled over the course of two months.
3

At sentencing, Matthews changed his tune. He argued that 

because the district court had already imposed home detention 

for violating release conditions, it could not impose a term of 

imprisonment for the same violations. The court disagreed. It 

orally sentenced Matthews to four months of imprisonment 

followed by 32 months of supervised release. The court stated 

that the supervised release would include drug testing but 

specified no other conditions. In contrast, the court’s written 

judgment imposed 21 conditions of supervised release—four 

specifically required by statute, 13 recommended in a 

Sentencing Commission policy statement, one about drug 

testing, and three others.

II

Matthews first contends that the district court erred by 

revoking supervised release and imprisoning him after it had

already imposed home confinement. His argument turns on 18 

U.S.C. § 3583(e), which governs the modification or 

revocation of supervised release. As relevant here, section 

3583(e) gives a district court three options for responding to a 

violation of release conditions. First, the court may “modify” 

the conditions that it previously imposed. Id. § 3583(e)(2). 

Second, the court may “revoke” the term of supervised release 

and require the defendant to “serve in prison” all or part of that 

term, subject to statutory maxima depending on the seriousness 

of the underlying offense. Id. § 3583(e)(3). Third, the court 

may order the defendant “to remain at his place of residence 

during nonworking hours,” but “only as an alternative to 

incarceration.” Id. § 3583(e)(4). Matthews contends that 

section 3583(e)(4) requires the district court to make a unitary

choice between incarceration and home detention: The court 

may impose a term of incarceration or a term of home 

detention, but not both. The government reads section 

3583(e)(4) differently. On its view, the statute simply prohibits
4

the combined term of any imprisonment and any home 

detention from exceeding the maximum term of imprisonment 

authorized by section 3583(e)(3). Here, it concludes, the 

district court’s orders were lawful because Matthews received 

only seven months of home detention followed by four months 

of imprisonment—far less than the maximum authorized 

revocation sentence of two years.

We need not decide who is correct, because Matthews 

waived below the argument that he seeks to press here. At the 

November 2021 hearing, the district court made crystal clear 

its intent to impose home detention only “temporarily,” as a

“stop-gap measure” while the parties tried to reach agreement 

on how many drug tests Matthews had missed. J.A. 98–99. 

Likewise, the court twice made clear that it would “sentence” 

Matthews only later, after resolving that question. J.A. 99–100. 

And Matthews’s acknowledged drug use required some term of 

imprisonment, regardless of whether he had skipped any tests. 

18 U.S.C. § 3583(g)(1). The Probation Office made this point 

in its motion to revoke Matthews’s supervised release. And the 

district court, more than a month before the November 2021

hearing, ordered defense counsel to “[m]ake sure [Matthews] 

understands” that his drug use would require “a mandatory 

prison sentence.” J.A. 79. At the November 2021 hearing, 

after proposing to impose home detention and then a later final 

sentence, the district court asked point-blank whether 

proceeding in this way was “acceptable to the defense.” J.A. 

100. Matthews’s counsel answered succinctly: “Yes. Thank 

you.” Id. Having agreed to this structured proceeding of home 

detention followed by a revocation sentence that had to include 

some term of imprisonment, Matthews cannot now complain 
5

that the district court gave him exactly that. See United States 

v. Olano, 507 U.S. 725, 732–33 (1993).1

III

The supervised release statute draws a basic distinction 

between mandatory and discretionary conditions. It 

enumerates certain mandatory conditions that a district court 

“shall” order, such as not committing any further crimes and 

not unlawfully possessing a controlled substance. 18 U.S.C. 

§ 3583(d). Then, it provides that a district court “may” order 

any other condition that is reasonably related to several of the 

sentencing factors in section 3553(a), involves no greater 

deprivation of liberty than reasonably necessary, and is 

consistent with any pertinent Sentencing Commission policy 

statements. Id. § 3583(d)(1)–(3). Matthews contends that all

such discretionary conditions must be orally pronounced at the 

defendant’s sentencing. We agree.

Criminal defendants have a right to be physically present 

at sentencing, which is grounded in the Fifth Amendment and 

codified in Federal Rule of Criminal Procedure 43(a)(3). See 

1 Matthews alternatively contends that even if a district court 

may impose some combination of home detention and imprisonment 

for the same violation of release conditions, section 3583 and the 

Double Jeopardy Clause required the court do so contemporaneously 

rather than in sequence. As the recitation above shows, this claim 

too falls squarely within the scope of Matthews’s waiver. 

Accordingly, we need not consider whether the home detention 

imposed here is better classified as a modification of the original 

release conditions under section 3583(e)(2), as the government 

contends, or as itself a revocation sentence under section 3583(e)(3), 

as Matthews contends. Likewise, we need not consider whether the 

answer to that question would have affected the district court’s 

ability to proceed sequentially rather than all-at-once.
6

United States v. Gagnon, 470 U.S. 522, 526 (1985) (per 

curiam); United States v. Love, 593 F.3d 1, 9 (D.C. Cir. 2010). 

A district court must therefore orally pronounce any sentence 

within the defendant’s presence. This oral pronouncement 

“constitutes the judgment of the court,” Gilliam v. United 

States, 269 F.2d 770, 772 (D.C. Cir. 1959), and a later written 

judgment “is a nullity to the extent it conflicts” with the oral 

one, United States v. Booker, 436 F.3d 238, 245 (D.C. Cir. 

2006). When the written and oral judgments conflict, we 

remand with instructions to conform the written judgment to 

the oral one. Love, 593 F.3d at 9.

The written judgment in this case contains 21 conditions 

of supervised release. One of them—that Matthews undergo 

drug testing—was orally pronounced. Four of them are 

mandatory conditions specifically required by section 3583(d). 

The parties agree that a district court need not orally pronounce 

such mandatory conditions, which follow from the imposition 

of supervised release as a matter of law. See, e.g., United States 

v. Rogers, 961 F.3d 291, 296–97 (4th Cir. 2020); United States 

v. Anstice, 930 F.3d 907, 909 (7th Cir. 2019). The other 16 

conditions are discretionary ones that were not orally 

pronounced at Matthews’s sentencing. The government offers 

three arguments why they were nonetheless lawfully imposed.

First, the government contends that when a district court 

imposes supervised release as part of a revocation sentence, it

need not re-pronounce conditions already pronounced and

imposed as part of the original sentence, as were most of the 

disputed conditions here. But the original term of supervised 

release is distinct from any subsequent term imposed after 

revocation. A revocation sentence arises when the district 

court chooses to “revoke a term of supervised release” and 

thereby sentence the defendant to additional time “in prison.” 

18 U.S.C. § 3583(e)(3). Moreover, “[w]hen a term of 
7

supervised release is revoked ... the court may include a 

requirement that the defendant be placed on a term of 

supervised release after imprisonment.” Id. § 3583(h)

(emphasis added). These provisions make clear that the 

original supervised release term does not survive its own 

revocation. And the district court, to impose a second 

supervised release term as part of the revocation sentence, must 

make a discretionary judgment that the circumstances warrant 

it. Yet circumstances may have changed from when the 

original sentence was imposed. For these reasons, the court 

must consider and pronounce any discretionary conditions

anew, after giving the defendant an opportunity to contest 

whether they remain appropriate. See United States v. Porter,

43 F.4th 467, 472 (5th Cir. 2022); Rogers, 961 F.3d at 294.

Second, the government argues that district courts never 

have to pronounce the “standard conditions” that are 

“recommended” in all cases by a Sentencing Commission 

policy statement, U.S.S.G. § 5D1.3(c). These conditions 

include requirements to report to the relevant probation office, 

take directions from the assigned probation officer, and answer 

his questions truthfully. See id. § 5D1.3(c)(1)–(2), (4). Two 

courts of appeals have held that these standard conditions need 

not be orally pronounced because they are “implicit in an oral 

sentence imposing supervised release.” United States v. 

Napier, 463 F.3d 1040, 1043 (9th Cir. 2006); United States v. 

Truscello, 168 F.3d 61, 62–63 (2d Cir. 1999). Moreover, these 

courts reason, the standard conditions form the administrative 

backbone of supervised release, and so they are “almost 

uniformly imposed.” Truscello, 168 F.3d at 63.

We respectfully disagree. For one thing, no matter how 

commonsensical the standard conditions may seem, the 

governing statute classifies them as discretionary, as does the 

policy statement itself. See 18 U.S.C. § 3583(d); U.S.S.G. 
8

§ 5D1.3(c). And courts may impose discretionary conditions 

only after making an individualized assessment of whether they 

are “reasonably related” to normal sentencing factors, 18 

U.S.C. § 3583(d)(1), and whether they involve “no greater 

deprivation of liberty than is reasonably necessary” under the 

circumstances, id. § 3583(d)(2). Moreover, even the most 

pedestrian of the conditions contains a level of detail that 

cannot plausibly be characterized as implicit in supervised 

release itself—for example, the requirement to report to the 

probation office within 72 hours of release rather than, say, 

within 48 hours or 96 hours. U.S.S.G. § 5D1.3(c)(1). And 

some of the standard conditions are quite intrusive—for 

example, the requirements to live somewhere approved by the 

probation officer, id. § 5D1.3(c)(5), and to work full time 

unless excused by the probation officer, id. § 5D1.3(c)(7). For 

these reasons, the standard conditions cannot be treated as 

legally or practically compelled by the imposition of any term 

of supervised release. Instead, as three other circuits have held, 

the district court must consider whether they are warranted in 

the circumstances of each case, must allow the defendant an 

opportunity to contest them, and must orally pronounce them 

at sentencing. Rogers, 961 F.3d at 297–98; United States v. 

Diggles, 957 F.3d 551, 558–59 (5th Cir. 2020) (en banc)

(unanimous); Anstice, 930 F.3d at 910.2

2 We do not suggest that the district court must orally pronounce 

all discretionary conditions word-for-word; conditions written out in 

advance of sentencing may be orally incorporated by reference. For 

example, a district court may satisfy the pronouncement requirement 

by referencing and adopting the conditions recommended in a 

presentence report or by simply saying that it is imposing the 

“standard” conditions. See United States v. Martinez, 15 F.4th 1179, 

1181 (5th Cir. 2021); Diggles, 957 F.3d at 560–62.
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Third, the government contends that Matthews invited 

error by asking the district court to impose non-standard, 

discretionary conditions that he receive treatment for substance 

abuse and mental health. But the government takes Matthews’s

statements out of context: He requested continued treatment as 

an alternative to revocation and imprisonment. He did not ask 

for treatment requirements as a condition of supervised release 

following a revocation sentence of imprisonment, much less 

for the imposition of such requirements without oral 

pronouncement. Because Matthews did not induce the error 

about which he now complains, there was no invited error. 

United States v. Lawrence, 662 F.3d 551, 557 (D.C. Cir. 2011).

IV

We affirm Matthews’s term of imprisonment. Because the 

written judgment contains discretionary release conditions that 

were not orally pronounced at sentencing, we remand for the 

district court to conform the written judgment to the orally 

pronounced one (plus the unchallenged mandatory conditions). 

See Love, 593 F.3d at 14. In so doing, we do not disturb the 

district court’s independent authority to prospectively modify

Matthews’s release conditions under section 3583(e)(2).

So ordered.