82 F.4th 640
9th Cir.2023Background
- Cynthia Montoya pleaded guilty to importing cocaine and methamphetamine after CBP arrested her at the border; the presentence report (PSR) recommended a 5‑year term of supervised release and that she abide by the Guidelines’ mandatory and "standard" conditions.
- At sentencing the district court imposed 100 months’ imprisonment and orally pronounced four specific supervised‑release conditions (special conditions) but did not orally recite the Guidelines’ standard conditions; the written judgment, however, included both mandatory and standard conditions.
- Montoya appealed, arguing her due‑process right to be present at the oral pronouncement of all discretionary supervised‑release conditions was violated because the standard conditions were not pronounced in her presence.
- The Ninth Circuit reheard the case en banc, reconsidering prior circuit precedent (United States v. Napier) that had permitted omission of oral recitation of Guidelines’ standard conditions.
- The en banc court held that any supervised‑release condition that is discretionary under 18 U.S.C. § 3583(d) (including Guidelines “standard” conditions) must be orally pronounced in the defendant’s presence, either by reciting each condition or by orally incorporating a document listing those conditions that was provided to the defendant in advance; the court overruled Napier to that extent.
- The court vacated only the unpronounced standard‑condition portions of Montoya’s supervised‑release sentence and remanded for limited resentencing on those conditions; the custodial sentence and mandatory conditions were affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether due process requires oral pronouncement in defendant's presence of Guidelines “standard” conditions of supervised release | Montoya: Standard conditions are discretionary and thus must be orally pronounced in her presence so she can contest them | Gov: Standard conditions are "implicit" in an oral supervised‑release sentence (Napier); no need to recite them orally | Held: Court requires oral pronouncement of all discretionary conditions (including Guidelines “standard” conditions) in defendant's presence; Napier overruled in part |
| Whether incorporation by reference can satisfy the oral‑pronouncement requirement | Montoya: Only meaningful if defendant was given the proposed conditions in advance and had opportunity to review | Gov: Oral incorporation is acceptable without strict advance notice | Held: Incorporation by reference is acceptable if the defendant received the written list in advance and the court orally incorporates it at sentencing in the defendant’s presence |
| Whether Montoya forfeited the right to object by failing to raise objections before sentencing | Gov: Failure to object earlier forfeits challenge | Montoya: She did not know the court intended to impose standard conditions until written judgment; thus she had no real opportunity to object | Held: No forfeiture—because the court did not orally impose or incorporate the standard conditions at sentencing, she lacked a real opportunity to object |
| Appropriate remedy and scope of remand | Montoya: Vacatur of the unpronounced conditions and chance to be present to object | Gov: Limited relief unnecessary; Napier covers many cases; broad remands burdensome | Held: Limited remand—vacate only the written standard conditions not orally pronounced and permit the district court to pronounce or incorporate them in Montoya’s presence; custodial sentence and mandatory conditions affirmed |
Key Cases Cited
- Snyder v. Massachusetts, 291 U.S. 97 (1934) (due‑process right to be present applies only when presence would contribute to fairness)
- Gagnon v. Scarpelli, 470 U.S. 522 (1985) (right to presence at certain proceedings protected by Due Process Clause when defendant not confronting witnesses)
- United States v. Aguirre, 214 F.3d 1122 (9th Cir. 2000) (sentence is imposed when orally pronounced; oral pronouncement controls written judgment)
- United States v. Napier, 463 F.3d 1040 (9th Cir. 2006) (previously held Guidelines “standard” conditions need not be orally pronounced; overruled in part)
- United States v. Diggles, 957 F.3d 551 (5th Cir. 2020) (incorporation by reference of advance‑provided list can satisfy oral‑pronouncement requirement)
- United States v. Anstice, 930 F.3d 907 (7th Cir. 2019) (standard conditions are discretionary under § 3583 and defendants entitled to be present for their pronouncement)
- United States v. Matthews, 54 F.4th 1 (D.C. Cir. 2022) (joins circuits requiring oral pronouncement of discretionary conditions; incorporation by reference permissible)