United States v. Griffin
| Decision Date | 23 November 2022 |
| Docket Number | 21-50294 |
| Parties | United States of America, Plaintiff-Appellee, v. Deshawn Dawayne Griffin, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Western District of Texas USDC No. 5:20-CR-332-1
Before HIGGINBOTHAM, HIGGINSON, and OLDHAM, Circuit Judges.
We turn again to a written judgment with discretionary conditions of supervised release not orally pronounced at sentencing. As the district court adopted neither the presentence report nor a court standing order, the discretionary conditions in the written judgment conflict with the oral pronouncement. So, we remand to the district court to amend the written judgment.[1]
I.
Deshawn Dawayne Griffin pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Presentencing Report ("PSR") determined that Griffin's base offense level was 22 under U.S.S.G. § 2K2.1(a)(3) because Griffin's offense involved a qualifying firearm and Griffin had a prior felony conviction for aggravated robbery, a crime of violence eligible for the enhancement. Due to Griffin's acceptance of responsibility, the offense level was lowered to 19. The advisory guidelines range of imprisonment was for 37 to 46 months. At his sentencing hearing, Griffin objected to the PSR only on the ground that his Texas aggravated robbery conviction did not qualify as a crime of violence. The district court overruled that objection and sentenced him to a within-guidelines term of 37 months of imprisonment and three years of supervised release. Griffin timely appeals.
II.
When a defendant objects to a condition of supervised release for the first time on appeal, "the standard of review depends on whether he had an opportunity to object before the district court."[2] If the defendant had the opportunity to object, but failed to do so, we review for plain error.[3] If there was no opportunity for the defendant to object, we review for abuse of discretion.[4] We first address whether Griffin had the opportunity to object.
"[A] defendant has a constitutional right to be present at sentencing."[5] In United States v. Diggles, this Court held that conditions of supervised release are part of a defendant's sentence and so must be pronounced unless their imposition is mandatory, as required by 18 U.S.C § 3583(d).[6] A district court may satisfy this pronouncement requirement by adopting a list of recommended supervised release conditions from a standing order, the PSR or some other document,[7] but "the mere existence of such a document is not enough for pronouncement."[8] The district court must ensure that the defendant has an opportunity to read and review that list with counsel and must orally adopt that list when the defendant is in court and can object.[9] "The pronouncement requirement is not a meaningless formality" because it provides the defendant with notice of the sentence and a chance to object.[10]
A district court does not adequately notify a defendant of the conditions to afford an opportunity to object where it fails to ask the defendant if he reviewed the PSR and does not refer to a standing order or to mandatory and standard conditions.[11] But where the district court confirms that the defendant has reviewed the PSR and announces that it is adopting the PSR, which recommends the standard conditions, the requirement is fulfilled.[12] Here, the district court confirmed that Griffin had the opportunity to review the PSR with defense counsel. The PSR listed all five special conditions and noted that they were "[i]n addition to the mandatory and standard conditions of supervision adopted by the Court." But the district court never orally adopted either the PSR or the standing order. The government argues that the district court discussed the discretionary conditions of supervised release when it orally recommended "the 500-hour substance abuse program, all available mental health counseling and medications." However the district court immediately continued," . . . and vocational and academic opportunities, particularly the CDL opportunity if the prison where you go has that." This discussion was turned to treatment that Griffin could receive while in prison, not the conditions of his supervised release.
The question remains if asking whether the defendant reviewed the PSR, which contains conditions of supervised release, with counsel is sufficient notice such that he had an opportunity to object. "That opportunity exists when the court notifies the defendant at sentencing that conditions are being imposed."[13] Here, that opportunity did not exist, as the district court never stated that the PSR was in fact being adopted. We review the imposition of these conditions for abuse of discretion; there is an abuse of discretion when the court makes an error of law.[14]
"If the district court fails to mention at sentencing a condition of supervised release that must be pronounced, its inclusion in the written judgment can create a conflict."[15] Such a conflict is legal error and thus an abuse of discretion. As the oral pronouncement controls, the written judgments must be amended to conform to the oral pronouncement.[16] We affirmed this yet again in United States v. Martinez, where en banc was sought and denied.[17] Here, the conditions of Griffin's supervised release were not orally pronounced at sentencing. Although they are included in the PSR, the PSR was never orally adopted. As this panel knows, we are bound by our Court's prior decisions, notably, United States v. Fields, and these unpronounced conditions must be excised from the judgment.[18] We note that on remand, "in certain circumstances the district court may later modify and enlarge the conditions of supervised release."[19]
III.
Griffin also brings two claims that are foreclosed by this Court's precedent. First, Griffin argues that his prior Texas convictions for aggravated robbery do not qualify as crimes of violence under guidelines § 2K2.1 and § 4B1.2. Griffin concedes that this issue is foreclosed by this Court's precedent but preserves this claim for further review.[20]
Second, Griffin argues that his § 922(g)(1) conviction must be reversed because that statute unconstitutionally extends federal control to firearm possession that does not substantially affect interstate commerce. Griffin concedes that this argument is foreclosed by United States v. De Leon,[21] but preserves this claim for further review.
We VACATE in part Griffin's sentence and REMAND to enable the district court to amend its written judgment.
This case involves a question that our en banc court left unresolved two years ago: What do we do when the written judgment in a criminal case conflicts with the district court's oral pronouncement during a sentencing hearing? See United States v. Diggles, 957 F.3d 551, 563 n.11 (5th Cir. 2020) (en banc) (). This question has far-reaching implications because our docket teems with cases where the sentencing judge says one thing and writes down something slightly different.
For reasons I cannot understand, our post-Diggles precedents generally prioritize spoken words over written ones. Today's case is just the latest example. The majority directs a victory for the defendant and orders the unpronounced supervised-release conditions stricken from his judgment. That conflicts with the rule-applicable in all, or virtually all, other legal contexts-that the written judgment governs the parties' rights and obligations. And it bizarrely pairs a substantive remedy (a directed victory for the defendant) with a procedural violation (failure to say something correctly at sentencing).
Deshawn Dawayne Griffin pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The Presentence Report ("PSR") stated various special conditions and expressly incorporated "the mandatory and standard conditions of supervision" in its district's standing order. Before the sentencing hearing, Griffin made no objections to the supervised-release conditions in the PSR. At the sentencing hearing, the district court confirmed that Griffin reviewed the PSR with his counsel and asked whether Griffin had any objections to the PSR. Again, Griffin had no objections to the supervised-release conditions. Although the district court discussed supervised release, it did not clearly announce that it was adopting the PSR's conditions. Those conditions appeared in the later-entered written judgment.
Griffin timely appealed, arguing that we must order the district court to conform the written judgment to the oral announcement of the sentence- i.e., reduce the severity of Griffin's supervised-release sentence by removing the unpronounced conditions.
I respectfully disagree. Part II describes the irreconcilable tension in our precedent regarding the nature of the right to be present at sentencing and the appropriate remedy for violations of that right. Part III explains that our court's chosen remedy-a directed victory for the defendant-is nonsensical. Part IV argues that a limited remand is a far superior alternative remedy. Finally, Part V addresses the panel majority's decision, which exacerbates our jurisprudential mess.
We sometimes describe the right to be present at sentencing as procedural; sometimes substantive. I (A) explain this dichotomous understanding of the presence right and (B) describe the various remedies we sometimes attach to violations...
To continue reading
Request your trial