USA v. John Nathan Hemingway

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11262
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN NATHAN HEMINGWAY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:22-cr-00027-TJC-LLL-1
____________________
USCA11 Case: 23-11262 Document: 34-1 Date Filed: 03/14/2024 Page: 1 of 4

-- 1 of 4 --

2 Opinion of the Court 23-11262
Before L AGOA , BRASHER , and ABUDU, Circuit Judges.
PER CURIAM:
John Nathan Hemingway appeals the district court’s impo-
sition of thirteen standard, discretionary conditions of supervised
release in its written judgment that it did not orally pronounce at
his sentencing for drug and firearm possession crimes. He argues
that this violated his Fifth Amendment due process rights. He also
argues that the district court failed to assess whether the conditions
were reasonably related to achieving the goals of sentencing. The
government concedes that Hemingway’s due process rights were
violated. We agree. Therefore, we vacate Hemingway’s sentence
as to the conditions of his supervised release and remand for resen-
tencing; but we do not address Hemingway’s other argument.
Generally, when a defendant fails to object to the conditions
of his supervised release at sentencing, we review objections on ap-
peal about those conditions for plain error. See United States v. Zinn,
321 F.3d 1084, 1087 (11th Cir. 2003). But when a defendant had no
opportunity to object at sentencing to discretionary conditions be-
cause the conditions were included for the first time in the written
judgment, we review the related issues de novo. See United States v.
Rodriguez, 75 F.4th 1231, 1246 n.5 (11th Cir. 2023).
We recently held that, to satisfy due process requirements,
“a district court must pronounce at the defendant’s sentencing
hearing any discretionary conditions of supervised release—that is,
any condition of supervised release other than those mandatory
USCA11 Case: 23-11262 Document: 34-1 Date Filed: 03/14/2024 Page: 2 of 4

-- 2 of 4 --

23-11262 Opinion of the Court 3
conditions set forth in 18 U.S.C. § 3583(d).” Id. at 1246. “A district
court may easily satisfy this requirement by referencing a written
list of supervised release conditions.” Id. For example, “the court
may orally adopt the conditions of supervised release recom-
mended in the defendant’s [presentence investigation report] or in
a standing administrative order.” Id. This is because “[b]y referenc-
ing at sentencing a written list, the court affords any defendant who
is unfamiliar with the conditions the opportunity to inquire about
and challenge them.” Id. But discretionary conditions of supervised
release must be pronounced orally in some way. See id. at 1249.
The district court failed to do that here. As the government
concedes, the district court erred in imposing discretionary condi-
tions of supervised release in its written judgment without orally
pronouncing them. Therefore, we must vacate the conditions and
remand for resentencing.
Hemingway also argues that the district court failed to con-
sider whether the conditions are reasonably related to the goals of
sentencing. But we do not address this argument because “when a
criminal sentence is vacated, it becomes void in its entirety; the sen-
tence . . . has been wholly nullified and the slate wiped clean.”
United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996) (internal
quotation marks omitted). On remand, the district court may “re-
visit any rulings it made at the initial sentencing” and may address
this purported issue at that time. United States v. Yost, 185 F.3d 1178,
1181 (11th Cir. 1999); see also Rodriguez, 75 F.4th at 1250 n.10 (“Be-
cause we conclude that Rodriguez was denied due process with
USCA11 Case: 23-11262 Document: 34-1 Date Filed: 03/14/2024 Page: 3 of 4

-- 3 of 4 --

4 Opinion of the Court 23-11262
respect to these conditions and remand for resentencing, we do not
address his argument that the district court failed to adequately ex-
plain them.”).
Accordingly, we VACATE Hemingway’s sentence as to the
conditions of his supervised release and REMAND for limited re-
sentencing on these conditions.
USCA11 Case: 23-11262 Document: 34-1 Date Filed: 03/14/2024 Page: 4 of 4

-- 4 of 4 --