UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DERALD WILFORD GEDDES, Defendant - Appellant.
No. 22-4053
United States Court of Appeals for the Tenth Circuit
June 23, 2023
PUBLISH. FILED United States Court of Appeals Tenth Circuit. Christopher M. Wolpert, Clerk of Court.
Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant - Appellant.
Gregory S. Knapp (David A. Hubbert, Deputy Assistant Attorney General, S. Robert Lyons, Chief, Criminal Appeals & Tax Enforcement Policy Section, Katie Bagley, and Joseph B. Syvеrson, Tax Division, Department of Justice, with him on the brief), Washington, D.C., for Plaintiff - Appellee.
Before BACHARACH, KELLY, and BRISCOE, Circuit Judges.
KELLY, Circuit Judge.
Defendant-Appellant Derald Wilford Geddes was convicted by a jury of tax obstruction,
Background
Mr. Geddes worked as a dentist in Ogden, Utah. I R. 35. After an audit and as of 2013, the IRS determined Mr. Geddes owed about $1.8 million in taxes, penalties, and interest. VI R. 736–37. Mr. Geddes represented himself at trial with assistance of standby counsel. II R. 91. The jury found Mr. Geddes guilty on all charges. VI R. 1006–07. At sentencing, the district court confirmed that Mr. Geddes and standby counsel had reviewed the Presentence Report (PSR). Id. 1018. The PSR stated restitution “shall be ordered . . . as a condition of supervised release.” V R. 24. Restitution is a mandatory condition of supervised release under
The written judgment included restitution in its group of mandatory conditions of supervised release and in a section entitled “Criminal Monetary Penalties.” III R. 266, 269. In the section called “Schedule of Payments” following the penalties section, the judgment included instructions for payment to begin during incarceration. Id. 270.
The PSR also listed four other conditions of supervised rеlease that are mandatory in both the guidelines and in
The PSR also stated Mr. Geddes “shall comply with the standard conditions of supervision as adopted by this Court.” V R. 25. It did not list any of the standard conditions. At sentencing, the district court did not refer to standard conditions or impose conditions of supervised release writ large, and also made no express statement that it was adopting the PSR. VI R. 1016–42. The district court did orally state nine special conditions that would apply tо Mr. Geddes’ term of supervised
The written judgment contained the nine special conditions as stated by the district court. III R. 268. However, it also contained the 16 additional conditions of supervised release Mr. Geddes complains of here. Two of these conditions were statutory mandatory ones that had been written out in the PSR: prohibitions on committing another crime and on possessing a controlled substance. Id. 266; see also
A. Whether the district court erred by imposing a freestanding restitution requirement.
We review this issue for plain error because Mr. Geddes made no objection at sentencing. Thus, he must show “(1) error (2) that is clear or obvious under current law, and which both (3) affected [his] substantial rights and (4) undermined the fairnеss, integrity, or public reputation of judicial proceedings.” United States v. Mullins, 613 F.3d 1273, 1283 (10th Cir. 2010);
Restitution must be authorized by statute and courts do not have inherent power to order it. United States v. Delano, 981 F.3d 1136, 1139 (10th Cir. 2020). Mr. Geddes argues the district court improperly imposed restitution as both a condition of supervised release that required payment outside the term of supervised release and as a freestanding obligation. Aplt. Br. at 12. There is some ambiguity in the written judgment as to the manner of restitution. III R. 268–70.
To the extent that payment is required outside of supervised release, the
An error affects a defendant‘s substantial rights when it “affect[s] the outcome of the district court proceedings.” Delano, 981 F.3d at 1140–41 (alteration in original) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). Because there is no statutory authority to extend the restitution requirement, the error necessarily changed the outcome of the district court proceedings and affected Mr. Geddes’ substantial rights. See id. Finally, restitution imposed without statutory authority should be corrected because it is beyond the remedy authorized; thus, it seriously affects the fairness or integrity of judicial proceedings. See id. Mr. Geddes has satisfied the plain error standard and the government does not contend otherwise. Therefore, we reverse the imposition of restitution to the extent it was ordered to be paid outside of supervised release.
B. Whether the district court erred by adding conditions of supervised release to the written judgment that were not orally pronounced at the sentencing hearing.
1. Standard of review
The parties disagree as to the standard of review regarding the 16 additional
This in turn requires consideration of the various types of conditions of supervised release. Title
Turning to the conditions imposed on Mr. Geddes, the two mandatory conditions at issue were contained in the PSR. Because the conditions are mandatory, “[i]t follows that the defendant has notice, via statute, that he will be subject to those conditions as a matter of law.” Rogers, 961 F.3d at 297. The district сourt confirmed at sentencing that Mr. Geddes and his standby counsel had reviewed the PSR. Mr. Geddes thus had constructive notice through the statute‘s mandate and actual notice from the PSR that these conditions would apply. But, because the PSR is not the sentence, see United States v. Villano, 816 F.2d 1448, 1451 (10th Cir. 1987) (en banc), and the district court did not purport to adopt the PSR or otherwise adopt in full the statutory mandatory conditions at sentencing, it is a close question as to whether Mr. Geddes had an opportunity to object at sentencing despite having notice. See Diggles, 957 F.3d at 561 & n.7 (“[I]n-court adoption of those conditions
For the 14 discretionary conditions, Mr. Geddes did not have notice or an adequate opportunity to object. The PSR only stated that Mr. Geddes “shall comply with the standard conditions of supervision as adopted by this Court.” V R. 25. Unlike the mandatory conditions, the PSR did not list the standard conditions with specificity. And the court made no reference at sentencing to adopting either: (1) the standard conditions as listed in the sentencing guidelines or as listed in the District of Utah; or (2) the PSR. There was nothing to indicate that Mr. Geddes should have objected. See Rogers, 961 F.3d at 295 (“[N]othing occurred at sentencing that would have alerted [the defendant] to the possibility that his written judgment might include [those] unmentioned conditions.” (emphasis аdded)).
Although this circuit does not require courts to make specific findings before imposing standard conditions, “[i]n some circumstances, the parties’ objections [to standard conditions] may justify modification to avoid uncertainty over a condition‘s reach or to fit the particular circumstances.” United States v. Munoz, 812 F.3d 809, 824 n.17 (10th Cir. 2015). Thus, even though they are “standard,” the standard conditions are only “recommended” and not inevitably justified in every case. The court does not have to adopt them. As for the suggеstion that a defendant has a responsibility to object to conditions not listed in the PSR, not orally imposed, and
Therefore, we will review the imposition of the two mandatory and 14 discretionary conditions in the written judgment for abuse of discretion. A district court abuses its discretion “when a ruling is based on a clearly erroneous finding of fact, an erroneous conclusion of law, or a clear error of judgment.” Munoz, 812 F.3d at 817. “An error of law is per se an abuse of discretion.” United States v. Ellis, 23 F.4th 1228, 1238 (10th Cir. 2022) (quoting United States v. Lopez-Avila, 665 F.3d 1216, 1219 (10th Cir. 2011)).
2. Merits
Sentencing in a criminal case affects fundamental human rights of life and liberty. Villano, 816 F.2d at 1452. Thе sentencing judge must announce the sentence such that the defendant is aware of the sentence when leaving the courtroom. Id. at 1452–53. The PSR is not the sentence — “[t]he sentence orally pronounced from the bench is the sentence.” Id. at 1451. Though the right is not absolute, a defendant has a constitutional right to be present at the imposition of his
If a written judgment and orally pronouncеd sentence conflict, “[i]t is a firmly established and settled principle of federal criminal law that an orally pronounced sentence controls.” Id. at 1450. The written judgment can be used to provide clarity to the sentence only if the oral sentence is ambiguous. United States v. Barwig, 568 F.3d 852, 855 (10th Cir. 2009). “[Tenth Circuit] jurisprudence leaves no space for undisclosed and unspoken judicial intent” and a defendant is entitled to rely on a sentencing judge‘s unambiguous words. Id. at 856–58.
To determine whether the orally pronounced sеntence is ambiguous, courts “consider only the words used by the sentencing court in formally pronouncing a sentence.” Barwig, 568 F.3d at 856. Ambiguity includes, but is not limited to, “(1) when the words used have more than one meaning; (2) when otherwise unambiguous words are used in an unusual way; (3) the extent of the sentence cannot be ascertained from the language used; or (4) the plain meaning of the words used lead to an irrational or absurd result.” Villano, 816 F.2d at 1453 n.6. None of these circumstances are present here. The issue is whether silenсe constitutes ambiguity.
Villano notably did not address whether silence is an example of ambiguity. 816 F.2d at 1454 (McKay, J., concurring) (noting this omission); id. at 1458 (Logan, J., concurring) (same); id. at 1460 (Anderson, J., concurring) (same). In Bruley, the district court told the defendant to familiarize himself “with all the special terms” after revoking his first supervised release and imposing a new term after a period of
We now turn to the discretionary and mandatory conditions to determine whether in this case, the district court‘s silence during sentencing created a conflict or was merely ambiguous.
a. Discretionary conditions
“As commonplace and sensible as these [discretionary] conditions may be across federal sentences, Congress has not mandated their imposition.” United States v. Anstice, 930 F.3d 907, 910 (7th Cir. 2019). For purposes of whether the conditions must be orally pronounced, the relevant distinction is between conditions mandated by the governing statute and those which are discretionary, even if the sentencing guidelines further subcategorize them as standard. See United States v. Matthews, 54 F.4th 1, 6 (D.C. Cir. 2022); Rogers, 961 F.3d at 299; Diggles, 957 F.3d at 559 & n.4. Section
In reaching this conclusion, we join the D.C., Fourth, Fifth, and Seventh Circuits which have each held that all discretionary conditions must be orally pronounced. See Matthews, 54 F.4th at 6; Rogers, 961 F.3d at 294; Diggles, 957 F.3d at 559; Anstice, 930 F.3d at 910.4 We clarify that this holding does not require the district court to recite verbatim each condition. While that is one option, if the conditions are written out in advance and the defendant has reviewed them, such as if they are fully written in the PSR or another document, the district court may incorporate them by reference or may simply say that it is imposing the standard conditions. See Matthews, 54 F.4th at 6 n.2; Diggles, 957 F.3d at 560–62; Rogers, 961 F.3d at 299. Should the district court not reference the discretionary conditions it believes should apply to a defendant‘s supervision, it is the government‘s responsibility to object. As long as the sentencing court notifies the defendant in court of the conditions being imposed and allows an opportunity for the defendant to object, the written judgment may list those conditions without creating a conflict.
Here, upon review of the words used by the district court at sentencing, see Barwig, 568 F.3d at 856, the court said nothing about other conditions that may apply. “A defendant must be entitled to rely on a judge‘s unambiguous words.” Barwig, 568 F.3d at 858. Our caselaw rejects undisclosed and unspoken judicial intent. Id. at 856–57. A one-sentence reference in the PSR to the standard conditions, with no incorporation of the PSR or mention of “standard” conditions in court during sentencing, is insufficient to impose these conditions. See Villano, 816 F.2d at 1452. As described above, a defendant has a right to be present at the imposition of his sentence. Id. Mr. Geddes was not aware of his sentence when he left the courtroom.
There is nothing in the district court‘s words that can be construed as ambiguous — the district court simply did not incorporate or impose any standard conditions of supervised release. Sеe Rogers, 961 F.3d at 299–300. Because Mr. Geddes was sentenced to supervised release with no mention of “standard conditions” that would apply, there is a conflict between his oral sentence and the written judgment. This is consistent with Bruley, which while only addressing special conditions, found that adding previously unmentioned conditions in the written judgment creates conflict rather than ambiguity. Cf. Bruley, 15 F.4th at 1287. We resolve that conflict with the well-established rule that the oral sentence controls. Therefore, the district court cоmmitted an error of law and abused its discretion by
b. Mandatory conditions
We turn to the imposition of the two mandatory conditions: prohibitions on committing another crime and on possessing a controlled substance. See Anstice, 930 F.3d at 909. Regardless of its position on whether discretionary conditions must be orally pronounced, every circuit to consider the issue has found that mandatory conditions of supervised release need not be pronounced. See Matthews, 54 F.4th at 5; Rogers, 961 F.3d at 296–97; Diggles, 957 F.3d at 557; Anstice, 930 F.3d at 909; United States v. Washington, 904 F.3d 204, 208 (2d Cir. 2018); see also United States v. Drapeau, 644 F.3d 646, 656 (8th Cir. 2011); United States v. Vega-Ortiz, 425 F.3d 20, 22–23 (1st Cir. 2005); United States v. Napier, 463 F.3d 1040, 1043 (9th Cir. 2006); United States v. Montoya, 48 F.4th 1028 (9th Cir.) (Forrest, J., concurring), reh‘g granted and opinion vacated by 54 F.4th 1168 (9th Cir. 2022).
There was no error or abuse of discretion in imposing these two conditions in the written judgment even though they were not orally pronounced. As discussed previously, Mr. Geddes had notice he would be subject to these two conditions because they appear in
3. Scope of remedy
Tenth Circuit caselaw has consistently held “unequivocal[ly] that ‘an orally pronounced sentence controls over a judgment and commitment order when the two conflict.‘” United States v. Bowen, 527 F.3d 1065, 1080 (10th Cir. 2008) (quoting
We note that Mr. Geddes remains subject to the nine unchallenged special conditions of supervised release and will also be subject to the statutory mandatory conditions. We also clarify that this holding does not affect a district court‘s ability under
Conclusion
We REVERSE the district court‘s imposition оf restitution to the extent it was ordered to be paid outside the term of supervised release and REMAND for the court to modify the written judgment in a manner consistent with this opinion. We AFFIRM the district court‘s imposition of the mandatory conditions of supervised release in the written judgment and REVERSE the imposition of the discretionary standard conditions of supervised release. We REMAND for the district court to conform the written judgment to what was orally pronounced in a manner consistent with this opinion.