UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CYNTHIA LEON MONTOYA, Defendant-Appellant.
No. 21-50129
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
September 13, 2023
D.C. No. 3:20-cr-02914-LAB-1
FOR PUBLICATION
OPINION
Larry A. Burns, District Judge, Presiding
Argued and Submitted En Banc March 22, 2023
Pasadena, California
Filed September 13, 2023
Before: Mary H. Murguia, Chief Judge, and Johnnie B. Rawlinson, Sandra S. Ikuta, Morgan Christen, Jacqueline H. Nguyen, Michelle T. Friedland, Ryan D. Nelson, Daniel P. Collins, Gabriel P. Sanchez, Holly A. Thomas and Roopali H. Desai, Circuit Judges.
Opinion by Judge Ikuta;
Dissent by Judge Collins
SUMMARY*
Criminal Law
Affirming in part and vacating in part a sentence imposed on Cynthia Montoya, and remanding, the en banc court held that a district court must orally pronounce all discretionary conditions of supervised release, including those referred to as “standard” in
In so holding, the en banc court overruled in part the opinion in United States v. Napier, 463 F.3d 1040 (9th Cir. 2006).
The en banc court further held that the pronouncement requirement is satisfied if the defendant is informed of the proposed discretionary conditions before the sentencing hearing and the district court orally incorporates by reference some or all of those conditions, which gives the defendant an opportunity to object.
The en banc court vacated only the conditions of Montoya‘s supervised release that were referred to as the “standard conditions” in the written sentence but were not orally pronounced. The en banc court remanded for the limited purpose of allowing the district court to cure its error by orally pronouncing any of the standard conditions of supervised release that it chooses to impose and by giving Montoya a chance to object to them.
Judge Collins dissented. He wrote that in setting new rules about how federal sentencings should be conducted, the majority misapplies the due process principles on which its decision is based, casts doubt on the validity of a potentially large number of criminal sentences, and sows confusion about what exactly district courts must do, going forward, to comply with the majority‘s ruling.
COUNSEL
James T. Dawson (argued) and Jeremy C. Marwell, Vinson & Elkins LLP, Washington, D.C.; Kent D. Young, Law Offices of Kent D. Young, San Diego, California; Michael A. Heidler, Vinson & Elkins LLP, Austin, Texas; for Defendant-Appellant.
D. Benjamin Holley (argued) and Oleksandra Johnson, Assistant United States Attorneys; Daniel E. Zipp, Assistant United States Attorney, Appellate Section Chief, Criminal Division; Randy S. Grossman, Acting United States Attorney; United States Attorney‘s Office, San Diego, California, for Plaintiff-Appellee.
Vincent J. Brunkow, Federal Defenders of San Diego Inc., San Diego, California, for Amicus Curiae Federal Defenders of San Diego Inc.
OPINION
IKUTA, Circuit Judge:
Cynthia Leon Montoya appeals her sentence on the ground that her due process rights were violated when the district court failed to pronounce certain discretionary conditions of supervised release in her presence. We hold that a district court must orally pronounce all discretionary conditions of supervised release, including those referred to as “standard” in
I
In August 2020, U.S. Customs and Border Protection (CBP) arrested Montoya for smuggling drugs into the United States from Mexico via the San Ysidro Port of Entry in San Diego. When arrested, Montoya had 4.4 kilograms of cocaine strapped to her back. Her 15-year-old son, who was traveling with her, had 5.02 kilograms of methamphetamine strapped to his body. Montoya admitted to the CBP officers that she had been offered $4,000 to smuggle the drugs into the United States, that she was aware her son had drugs strapped to him, and that she had successfully smuggled drugs across the border on several previous occasions.
Montoya pleaded guilty to two counts of knowingly and intentionally importing 500 grams or more of cocaine and methamphetamine into the United States, in violation of
On appeal, Montoya argues that the district court violated her due process right to be present at sentencing by not orally pronouncing the standard conditions of supervised release set forth in
We have jurisdiction under
II
We first consider the scope of a defendant‘s right to be present for the oral pronouncement of conditions of supervised release.
A
“[A] defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745 (1987); see also Hovey v. Ayers, 458 F.3d 892, 901 (9th Cir. 2006) (defining a “critical stage” as “any
While the right to be present is “an essential condition of due process,” Snyder v. Massachusetts, 291 U.S. 97, 119 (1934), it is not absolute. In Snyder, the Supreme Court rejected a defendant‘s argument that he had a right to be present when the jury viewed the scene of the crime. Id. at 108. The Court explained that, although the defendant may have a right “to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge,” id. at 105–06, the defendant has no right to be present “when presence would be useless, or the benefit but a shadow,” id. at 106-07. Therefore, “the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Id. at 107–08.
The due process right to be present applies to sentencing because “sentencing is a critical stage of the criminal proceeding” and the sentencing process “must satisfy the requirements of the Due Process Clause.”7 Gardner v. Florida, 430 U.S. 349, 358 (1977) (plurality opinion). “After conviction, a defendant‘s due process right to liberty, while diminished, is still present. He retains an interest in a sentencing proceeding that is fundamentally fair.” Betterman v. Montana, 578 U.S. 437, 448 (2016). Because the vast majority of prosecutions culminate in guilty pleas, sentencing is “frequently the most important part of the criminal proceeding” for the defendant, and indeed is often the only part “in which the individual and the state disagree about the proper outcome.” Hays, 977 F.2d at 479.
Sentencing typically involves the imposition of a term of supervised release.8 See
If a court imposes a term of supervised release, it is required to impose certain mandatory conditions. See
A court may also impose discretionary conditions of supervised release that “it considers to be appropriate.” Id. District courts “enjoy broad discretion in fashioning the conditions needed for successful supervision of a defendant,” but their discretion remains “subject to three primary constraints.” United States v. LaCoste, 821 F.3d 1187, 1190 (9th Cir. 2016). “First, the condition must be reasonably related to the nature and circumstances of the offense; the history and characteristics of the defendant;” or the goals of just punishment, “deterrence, protection of the
The Guidelines give district courts guidance for imposing appropriate conditions of supervised release. See
Because a defendant has a right to be present at sentencing “to the extent that a fair and just hearing would be thwarted by his absence,” Snyder, 291 U.S. at 108, it follows that a defendant has the right to be present during the oral pronouncement of conditions of supervised release to the extent “his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against” the condition, id. at 105–06.
A defendant‘s due process right to be present at a critical stage is not violated if the district court imposes mandatory conditions of supervised release only in the written judgment. See Napier, 463 F.3d at 1043. Because these conditions are required under
The situation is different when a court imposes a condition that is not mandated by
A defendant‘s right to be present for the imposition of a condition of supervised release to which a defendant could raise a defense applies to any condition imposed by the district court that is not mandated by statute, without regard to whether the Guidelines label this condition “standard” under
We previously took a different view, holding that district courts need not orally pronounce the standard conditions of supervised release set forth in
As we have explained, Napier‘s conclusion is wrong because it is based on an incorrect premise. Contrary to Napier‘s statement that standard conditions of supervised release are “necessarily included” in an oral sentence, id., the Guidelines make them entirely discretionary, and therefore the defendant (if present when they were pronounced) could defend against them, see Snyder, 291 U.S. at 105. The standard conditions are thus analogous to what Napier referred to as “nonstandard” conditions, which had to be announced as part of the defendant‘s oral sentence. 463 F.3d at 1041-42. We therefore overrule Napier to the extent it held that a district court need not orally pronounce the standard conditions recommended by
In reaching this conclusion, we join five of our sister circuits in holding that, for purposes of determining whether a defendant has a due process right to be present for sentencing (specifically, for the oral pronouncement of a condition of supervised release), what matters is whether a condition is mandatory or discretionary under
B
1
Having established that the defendant is entitled to be present for the district court‘s oral pronouncement of all discretionary conditions of supervised release, we now consider how district courts can satisfy this requirement. We agree with our sister circuits that the district court may satisfy the oral pronouncement requirement when imposing discretionary conditions of supervised release at the sentencing hearing in two different ways. The district court can recite each condition it elects to impose. Alternatively, where the defendant has been informed of the proposed conditions of supervised release in advance of sentencing, the court can incorporate those conditions by reference at the hearing. See Diggles, 957 F.3d at 560; Matthews, 54 F.4th at 6 n.2; see also United States v. Wise, 391 F.3d 1027, 1033 (9th Cir. 2004) (stating that “advance written notice” of supervised release conditions “work[s] best“). When the court states at the sentencing hearing in the presence of the defendant that it is incorporating by reference one or more discretionary conditions from a document or list provided to the defendant in advance of the hearing, the defendant has a meaningful opportunity to challenge those conditions. The court‘s oral incorporation by reference of this previously provided list or document would satisfy the due process requirement that the defendant be present during the critical stage of sentencing. Indeed, such a procedure gives the defendant “‘far more opportunity to review and consider objections to those conditions’ than defendants who hear about them for the first time when the judge announces them.” Diggles, 957 F.3d at 560–61 (quoting United States v. Bloch, 825 F.3d 862, 872 (7th Cir. 2016)).
The court‘s oral incorporation by reference of conditions set forth in the presentence report at the sentencing hearing would generally meet this requirement. The presentence report is provided to the defendant in advance of the sentencing hearing, and the Federal Rules of Criminal Procedure require that “[a]t sentencing, the court . . . must verify that the defendant and the defendant‘s attorney have read and discussed the presentence report and any addendum to the report.”
Alternatively, “[a] document proposing conditions that a court orally adopts at sentencing may take a form other than” the presentence report, such as “courtwide or judge-specific standing orders that list conditions.” Diggles, 957 F.3d at 561 & n.5. The proposed written notice of discretionary conditions of supervised release need not be in a particular type of document, so long as the defendant has a meaningful opportunity to challenge those conditions by being informed of the proposed conditions in advance and being given “an opportunity to review [them] with counsel,” and the court orally “adopt[s] the written recommendations when the defendant is in court.” Id. at 561 n.5.15
In sum, we hold that a district court must orally pronounce all discretionary conditions of supervised release in the presence of the defendant. We further hold that this pronouncement requirement is
2
Although incorporating the discretionary conditions of supervised release set forth in the presentence report (or some other list or document provided to the defendant in advance of the hearing) by reference is one means by which the district court can satisfy the requirement that it must orally pronounce a sentence in the presence of a defendant, this procedure is distinct from the procedural sentencing requirements set forth in Rule 32 of the Federal Rules of Criminal Procedure. Because the dissent conflates Rule 32 with the due process requirement that a sentence be orally pronounced in the defendant‘s presence (which can be satisfied through incorporation by reference), see Dissent at 36-38, we briefly explain the relevant provisions of Rule 32.
District courts ““must consult [the] Guidelines and take them into account when sentencing,’ even though they now have the discretion to impose non-Guidelines sentences.” United States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006) (alteration in original) (quoting United States v. Booker, 543 U.S. 220, 264 (2005)). Among other things,
Furthermore, because a defendant does not forfeit the right to challenge the sentence pronounced at the sentencing hearing, a fortiori, the defendant does not forfeit the right to challenge the district court‘s failure to pronounce part of the sentence orally. Where the district court attempts to satisfy this requirement by incorporating a previously provided list of discretionary conditions by reference, a defendant does not forfeit the right to object that the incorporation by reference is defective, regardless whether the document purported to be incorporated is a presentence report or some other document. The requirement, under the Due Process Clause, that the sentence be imposed orally in the presence of the defendant is distinct from
III
We now apply these principles to Montoya‘s case. Montoya was entitled to
Contrary to the dissent‘s assertion, Montoya did not forfeit her right to object to the standard conditions, even though the presentence report recommended their imposition. Dissent at 34, 37. Such recommendations were not binding on the district court, see Herrera-Figueroa, 918 F.2d at 1435, and did not constitute “the actual oral pronouncement [of the sentence] in the presence of the defendant,” Aguirre, 214 F.3d at 1125-26 (quoting Munoz-Dela Rosa, 495 F.2d at 256). A defendant‘s ability to make anticipatory objections does not satisfy a defendant‘s due process right to be present when discretionary conditions are orally pronounced. The dissent‘s argument that Montoya was required “to raise any objections to the standard conditions prior to the imposition of sentence,” Dissent at 33-34, is unsupported by any authority. Rather, our caselaw indicates that defendants may object to the imposition of conditions of supervised release for the first time at their sentencing hearings. See United States v. Quinzon, 643 F.3d 1266, 1268 (9th Cir. 2011); see also United States v. Apodaca, 641 F.3d 1077, 1080 (9th Cir. 2011) (noting that the court modified conditions of supervised release recommended in the presentence report based on objections raised by defense counsel at the sentencing hearing). Here, Montoya was given no opportunity to object, because the district court neither pronounced the standard conditions of supervised release on the record nor incorporated them by reference to the presentence report.
We also reject the dissent‘s argument that Montoya‘s due process right to be present at sentencing was not violated because Napier stated that the court‘s imposition of standard conditions “is deemed to be implicit in an oral sentence imposing supervised release.” Dissent at 29-30 (citing Napier, 463 F.3d at 1043). Because the standard conditions are discretionary, our prior judicial ruling that such conditions are “implicit” in a sentence does not mandate their inclusion in every sentence.18 Thus, Montoya would not know during the sentencing proceeding itself whether the district court had “implicitly” included them in her sentence. Indeed, in this case, she did not learn that the court had done so until she received the written judgment, so she had no meaningful opportunity to defend against their imposition. Therefore, Montoya was deprived of her due process right to be present for sentencing—in her case, the oral pronouncement of discretionary conditions of supervised release—regardless of our statement in Napier. Cf.
Our conclusion raises a question about the appropriate scope of remand. We have held that “the power to remand for resentencing necessarily encompasses the lesser power to order a limited remand,” and that “appellate courts are not precluded from limiting the scope of issues on remand.” United States v. Ameline, 409 F.3d 1073, 1079-80 (9th Cir. 2005) (en banc). We have taken different approaches in cases where supervised release conditions that were not orally pronounced appeared in a written judgment. For example, in Reyes, “we exercise[d] our discretion to vacate the entirety of the supervised release portion of [a defendant‘s] sentence and ... remand[ed] to the district court for the limited purpose of imposing a new supervised release sentence.” 18 F.4th at 1139. In other cases where one or more conditions were deemed wrongfully imposed, we exercised our discretion to vacate only a particular portion of the supervised release sentence. See, e.g., United States v. Blinkinsop, 606 F.3d 1110, 1123 (9th Cir. 2010) (vacating a supervised release sentence only as to two special conditions and ordering a “limited remand“); see also Soltero, 510 F.3d at 867 (remanding “to the district court for it to excise [a] portion of [a] [c]ondition ... from [the defendant]‘s set of supervised release conditions“); United States v. Stephens, 424 F.3d 876, 884 (9th Cir. 2005).
In this case, the limited remand approach is appropriate. We vacate only the conditions of supervised release that were referred to as the “standard conditions” in the written sentence but were not orally pronounced. Remand is required so that the district court can cure its error by orally pronouncing any of the standard conditions of supervised release that it chooses to impose and by giving Montoya a chance to object to them. Because the failure to pronounce those conditions is the only sentencing error—the district court made adequate findings supporting the reasonableness of the custodial sentence and properly imposed the mandatory conditions and orally pronounced special conditions—we exercise our discretion “to remand to the district court for the limited purpose of” reconsidering the supervised release conditions we have vacated herein. Reyes, 18 F.4th at 1139. Each party shall bear its own costs on appeal. See United States v. Evans, 883 F.3d 1154, 1164-65 (9th Cir. 2018); see also
AFFIRMED IN PART, VACATED IN PART, and REMANDED.
COLLINS, Circuit Judge, dissenting:
In setting new rules about how federal sentencings in this circuit should be conducted, the majority misapplies the due process principles on which its decision is based, casts doubt on the validity of a potentially large number of criminal sentences, and sows confusion about what exactly district courts must do, going forward, to comply with the majority‘s ruling. I respectfully dissent.
I
Under the current federal sentencing statute, a sentence of imprisonment will
The Sentencing Commission has addressed the subject of supervised release conditions in
The question presented in this case concerns the pronouncement of a criminal sentence and, specifically, what district courts must do, at sentencing, in describing the conditions of supervised release. In United States v. Napier, 463 F.3d 1040 (9th Cir. 2006), we held that the “mandatory and standard conditions” of supervised release described in
II
I agree with the majority that, under the Due Process Clause and
A
The record overwhelmingly confirms that Montoya had ample opportunity to object to the imposition of the standard conditions in her case. Accordingly, there was no violation of her due process rights on such a theory.
We have previously held—and the majority reaffirms, see Opin. at 22 n.17—that a defendant need not be given advance notice that the district court is considering imposing, as a condition of supervised release, one of the conditions that are expressly “listed in the discretionary conditions of supervised release in the guidelines.” United States v. Wise, 391 F.3d 1027, 1032 (9th Cir. 2004) (citing United States v. Lopez, 258 F.3d 1053, 1055-56 (9th Cir. 2001)). As Wise explains, because “all defendants have notice” of the discretionary conditions that are listed in the Guidelines, the mere fact of such listing alone puts defendants on notice that such conditions may be on the table at sentencing. Id. at 1032; see also Lopez, 258 F.3d at 1056 (holding that “all defendants are alerted” to the discretionary conditions listed in the Guidelines and therefore need not be given advance notice before such a condition is imposed at sentencing). Indeed, Lopez reached that conclusion with respect to a “special“—i.e., non-standard—discretionary condition that is expressly identified in the Guidelines as one that district courts should consider in appropriate cases. See Lopez, 258 F.3d at 1055-56 (holding that no advance notice was required before the district court imposed a condition that the defendant receive mental health treatment, which is a special condition listed in
Here, in addition to the constructive notice of the standard conditions that Wise and Lopez recognize as fully sufficient, Montoya also received actual notice that the standard conditions were being considered in her case. In accordance with
Moreover, having been explicitly informed that the PSR recommended imposition of the “standard conditions” of supervised release, Montoya then had the concomitant obligation to object to any of those conditions that she thought were unwarranted in her case. See
The majority nonetheless says that Montoya‘s wholesale failure to raise any
Moreover, the majority‘s holding on this score reveals a fundamental disconnect between the facts of this case and the majority‘s due process theory. As the majority explains, the Due Process Clause protects a “right to be present during the oral pronouncement of conditions of supervised release” only “to the extent ‘[the defendant‘s] presence has a relation, reasonably substantial, to the fullness of his [or her] opportunity to defend against’ the condition.” See Opin. at 13 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06 (1934) (emphasis added)). That is why, according to the majority, there is no due process violation if mandatory conditions are imposed in the written judgment without having been pronounced in the defendant‘s presence: because “a defendant cannot defend against them,” a “defendant‘s presence during the oral pronouncement of mandatory conditions ‘would be useless, or the benefit but a shadow.‘” See Opin. at 13-14 (quoting Snyder, 291 U.S. at 106-07). I do not see why the same logic would not apply to standard conditions as to which the defendant has forfeited any objection. In that situation, just as in the mandatory-condition scenario, the defendant has no practical ability to defend against the condition, and the benefit of presence is, to that extent, “but a shadow.” By the time that the sentence was being orally pronounced in this case, Montoya had forfeited any objections to the standard conditions, and she therefore could no longer “defend against them.” See Opin. at 13-14.
It follows from the foregoing that, to the extent that Montoya suffered a violation of her due process right to be present for the actual oral pronouncement of supervised release conditions in this case, it must be rooted in something other than the theory that Montoya was deprived of a meaningful opportunity to object.
B
The only potential remaining due-process-based objection, it seems, would be if the oral pronouncement of the sentence failed to adequately inform the defendant of the sentence, thereby causing the defendant to reasonably believe, upon leaving the courtroom, that the sentence is something different from what was later shown in the written judgment. But on this record, any such claim is untenable.
I agree with the majority that, in orally pronouncing that the standard conditions
But in my view, that example is not the only way in which the district court can, by its oral pronouncement, adequately communicate to the defendant and her counsel what conditions of supervised release have been imposed. If, for example, a local rule or standing order stated that, unless the district court states otherwise in imposing sentence, the court‘s imposition of a term of “supervised release” shall be deemed to include the mandatory and standard conditions, that would also be sufficient. Under such a regime, everyone would be on notice that, by using the phrase “supervised release,” the district court was automatically imposing the mandatory and standard conditions. The phrase “supervised release” would itself be a shorthand for that basic package of conditions.
That is effectively the regime that has existed in this circuit at least since our decision in Napier, and until its abrogation today. Napier announced that, merely by orally imposing a term of “supervised release,” the district court would be understood as having imposed the mandatory and standard conditions, because Napier “deemed” those conditions “to be implicit in an oral sentence imposing supervised release.” 463 F.3d at 1043. The Napier court may have been unwise to adopt that rule, and I have no particular remorse over its demise today. But during the time that Napier remained good law, it formed the backdrop for how to understand an oral imposition of a term of “supervised release” in this and every other post-Napier sentencing in this circuit. Consequently, when the district court orally imposed a term of “supervised release” in Montoya‘s case, that statement must be understood as a shorthand that incorporates the mandatory and standard conditions. That shorthand will no longer be available after today‘s decision, but the factual meaning of the district court‘s oral sentence, which occurred while Napier was on the books, was sufficiently clear at the time it was rendered.3
Accordingly, the district court‘s oral sentence adequately informed Montoya and her counsel that the standard conditions were being imposed. At the conclusion of the sentencing, Montoya could not reasonably have been misled as to what sentence was just imposed, and her right to presence was not violated. Accordingly, there was no due process violation under this theory either.4
In addition to being substantively wrong, the disruptive implications of today‘s decision may be quite significant.
A
The majority opinion expressly endorses only certain specific methods for handling the oral pronouncement of supervised release conditions in light of today‘s decision, and in doing so it pointedly fails to endorse additional alternatives that have been recognized as acceptable by other circuits. The disparity creates a substantial cloud of uncertainty in an area in which clarity is vital.
The majority agrees that it would be acceptable for a district court to “recite each condition it elects to impose.” See Opin. at 17. But no district court would ever want to do that, because the full recitation of the blizzard of words contained in the standard and mandatory conditions would be tediously laborious for all involved. It is therefore critical, as a practical matter, to know exactly what other, more realistic, alternatives would be acceptable. The majority expressly blesses only one other option—namely, providing the full list of proposed supervised release conditions to the defendant ”in advance of sentencing” and then “incorporat[ing] those conditions by reference at the hearing.” See Opin. at 17 (emphasis added); see also Opin. at 18, 20, 23 (stating that the list must be “previously provided” or given “in advance” or “before the sentencing hearing“). Thus, even as the majority reaffirms our caselaw stating that advance notice of conditions listed in the Guidelines (standard or special) need not be provided, such advance notice is the only safe harbor announced in the majority‘s opinion.
The majority notably does not say whether, as some courts have indicated, it would suffice if the presentence report contains a one-line reference to the “standard conditions” and the court then simply states at the sentencing that it is imposing the “standard conditions.” See United States v. Martinez, 15 F.4th 1179, 1180-81 (5th Cir. 2021) (noting that the referent of “standard conditions” was clear in light of a local standing order); see also United States v. Matthews, 54 F.4th 1, 6 & n.2 (D.C. Cir. 2022) (“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.“). I can see no reason why it would not suffice, for example, to say that “the court imposes the standard conditions listed in the Guidelines.” No one could reasonably feign ignorance as to what those conditions were.
The majority nonetheless declines to address whether these alternatives would also be acceptable, saying that it raises a “fact-specific inquiry [that] should be addressed on a case-by-case basis.” See Opin. at 19 n.15. As a practical matter, however, the majority‘s opinion effectively answers the question in the negative. The majority is willing to endorse, up front, the option of providing an advance written list and then incorporating that list at sentencing. But when it comes to simply cross-referencing the Guidelines’ list of standard conditions without having provided an advance list, the majority says that the viability of that option turns on the specific facts of the case. Moreover, in upholding its advance-notice option, the majority says that it works only ”so long as” the record
The practical effect of the majority‘s decision will thus be to require that a written list of conditions be supplied in advance and that an inquiry be made as to whether the defendant has reviewed it with counsel. That may be a sound proposal that the Advisory Committee on the Criminal Rules could consider adding to
B
In addition to being unwarranted, today‘s decision threatens to result in substantial—and utterly pointless—costs. District courts in our circuit impose literally thousands of sentences each year, and it is a safe bet that, in light of Napier, a very large number of them have not complied with the requirements set forth in today‘s opinion. The majority attempts to limit the damage by declaring in advance that what I will refer to as ”Montoya errors” do not provide grounds for a collateral attack on an already final sentence. See Opin. at 20 n.16. But for the many cases currently on appeal, the impact of today‘s decision could be quite significant. In every such case in which the district court relied on Napier‘s shorthand, the defendant can now raise the Montoya issue for the first time on appeal, given that, under the majority‘s decision, that is the first time the defendant had “any real opportunity to object.” See Opin. at 7 (citation omitted). The result may be many comparable remands in other cases, each of which will require an in-person hearing—which will require, for currently incarcerated defendants, physical transportation back to the sentencing district court—and all for the limited purpose of briefly asking the defendant in person whether he or she has reviewed the list of standard conditions with counsel before the court then orally adopts that list by cross-reference. Neither due process nor common sense require such a result.
I respectfully dissent.