Discretionary Probation Terms Must Be Orally Stated

In August of 2020, U.S. Customs and Border Protection (CBP) arrested Cynthia Leon 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 (about ten pounds) 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.

Ms. Montoya admitted to the CBP officers that she had been offered $4,000 to smuggle the drugs into the U.S., that she was aware that her son had drugs strapped to him, and that she had successfully smuggled drugs across the border on several previous occasions.

Ms. Montoya later pled guilty in U.S. District Court (San Diego) to two counts of knowingly and intentionally importing 500 grams or more of cocaine and methamphetamine into the United States, in violation of 21 U.S.C. §§ 952 and 960.  She was then sentenced to 100 months in federal prison plus five years of supervised release.

As part of her five years of supervised release, the presentence report recommended “[t]hat the defendant abide by the mandatory and standard conditions of supervision,” as well as four additional conditions set forth in full in the presentence report.

At Montoya’s sentencing hearing, the judge orally imposed the four conditions of supervised release that were described in the presentence report, but then in its written judgement, the judge included both the mandatory conditions of supervised release required by 18 U.S.C. § 3583(d) and the “standard” conditions as recommended in § 5D1.3(c) of the United States Sentencing Guidelines Manual (“Guidelines”).

Ms. Montoya appealed her sentence to the U.S. Court of Appeals for the Ninth Circuit in Pasadena, arguing that the judge violated her due process right to be present at sentencing by not orally pronouncing the standard conditions of supervised release set forth in § 5D1.3(c) in her presence during the sentencing hearing. 

A three-judge-panel rejected Montoya’s argument, but the U.S. Court of Appeals for the Ninth Circuit agreed to rehear this case en banc (a special procedure where all judge assigned to the bench participate in a hearing) to reconsider its rule that the standard conditions of supervised release need not be orally pronounced as part of sentencing.  United States v. Napier (9th Cir., 2006) 463 F. 3d 1040.

In reviewing Ms. Montoya’s argument, the Ninth Circuit began by recognizing that a defendant is guaranteed the right to be present at any stage of the criminal proceeding that it critical to its outcome if her presence would contribute to the fairness of the procedure.  Kentucky v. Stincer (1987) 482 U.S. 730, 745.

The Ninth Circuit continued, stating that sentencing is one such “critical stage” that must satisfy the requirements of the Due Process Clause.

The Ninth Circuit then held en banc that the right to be present for imposition of a condition of supervised release applies to any condition imposed by the district court that is not mandated by statute, without regard to whether the Guidelines label this condition as “standard.” 

In so holding, the Ninth Circuit overruled in part Napier, supra, and 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 b reference some or all of those conditions, which gives the defendant an opportunity to object.

The Ninth Circuit rejected the government’s argument that Ms. Montoya forfeited her challenge to the District Court’s failure to make an oral pronouncement of the standard conditions of supervised release by not objecting during the sentencing hearing.  Since Ms. Montoya did not know that the District Court intended to impose the standard conditions of supervised release until after she received the written judgment, Ms. Montoya did not have “any real opportunity to object” to the District Court’s failure to make an oral pronouncement of those conditions during the sentencing proceedings.