United States v. Maiorana

22-1115-cr
United States v. Maiorana
United States Court of Appeals
For the Second Circuit
August Term 2024
Submitted en banc: June 25, 2025
Decided: August 28, 2025
No. 22-1115-cr
UNITED S TATES OF AMERICA,
Appellee,
v.
B RIAN MAIORANA,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of New York
No. 1:20CR00519, Frederic Block, Judge.
Before:
LIVINGSTON, Chief Judge, L EVAL , PARKER , L OHIER , S ULLIVAN, B IANCO, PARK ,
N ARDINI , MENASHI , L EE , ROBINSON, PÉREZ , N ATHAN, MERRIAM, and KAHN, Circuit
Judges.*
MERRIAM, J., filed the majority opinion in which L IVINGSTON, C.J., L EVAL ,
PARKER , L OHIER , S ULLIVAN, B IANCO, PARK, N ARDINI , L EE , ROBINSON, PÉREZ ,
N ATHAN, and KAHN, JJ., joined.
* Judge Leval and Judge Parker, who are senior judges, participated in this rehearing en
banc pursuant to 28 U.S.C. §46(c)(1) and §294(c).

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MENASHI , J., filed a dissenting opinion.
Brian Maiorana, who was convicted and sentenced by the United States
District Court for the Eastern District of New York (Block, J.), appeals from the
sentence imposed on him. He contends that his constitutional right to be present
at his sentence was violated by the imposition, in the written judgment, of
thirteen conditions of supervised release; the District Court never orally (or
otherwise) notified Maiorana, before or at the sentencing hearing, of its intent to
impose those thirteen conditions. The conditions in question essentially mirror
the non-mandatory conditions described as “standard” conditions of supervised
release in §5D1.3(c) of the United States Sentencing Guidelines.
The terms of a defendant’s sentence must ordinarily be pronounced in his
presence at the sentencing proceeding. We derogated from this general rule in
United States v. Truscello, 168 F.3d 61, 62 (2d Cir. 1999), to permit a sentencing court
to add to the judgment after sentencing, without pronouncement in the presence
of the defendant, conditions that we deemed “necessary to effect” the purpose of
supervised release – in particular, mandatory conditions and the discretionary
“standard” conditions that were then set forth in §5D1.3(c) of the Guidelines.
Maiorana’s challenge has drawn our attention to recent decisions of other circuits,
including recent en banc decisions, which render Truscello’s ruling on discretionary
conditions an outlier. On re-examination, we find that Truscello’s exception to the
pronouncement rule for certain non-mandatory conditions does not sufficiently
respect a defendant’s constitutional right to be present at sentencing. We therefore
hold that to impose any non-mandatory conditions of supervised release,
including those labeled as “standard” in §5D1.3(c), a sentencing court must
pronounce those conditions in the defendant’s presence during the sentencing
proceeding and, without having done so, may not subsequently add them to the
written judgment.
Proceeding en banc, we now overrule Truscello. We VACATE the portion of
the defendant’s sentence imposing the thirteen discretionary conditions of
supervised release. With the consent of both parties, we also vacate a condition
imposed in the written judgment that directly contradicts the judgment as orally
pronounced in the defendant’s presence. We REMAND this matter to the District
Court for further proceedings in accordance with this opinion.

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Sarah Baumgartel, Edward S. Zas, Federal
Defenders of New York, Inc., New York, NY,
for Defendant-Appellant.
Andrew M. Roddin, Anthony Bagnuola,
Assistant United States Attorneys, for Joseph
Nocella, Jr., United States Attorney for the
Eastern District of New York, Brooklyn, NY, for
Appellee.
Allison Frankel, American Civil Liberties
Union Foundation, New York, NY; Daniel R.
Lambright, Molly K. Biklen, New York Civil
Liberties Union Foundation, New York, NY, for
amici curiae Executives Transforming Probation
and Parole, American Civil Liberties Union, and
New York Civil Liberties Union in support of
Defendant-Appellant.
Terence S. Ward, Federal Defender, Federal
Defender’s Office for the District of
Connecticut, Hartford, CT; Kelly M. Barrett,
First Assistant Federal Defender, Carly
Levenson, Assistant Federal Defender, Federal
Defender’s Office for the District of
Connecticut, New Haven, CT, for amicus curiae
Federal Defender’s Office for the District of
Connecticut in support of Defendant-Appellant.
Meredith Esser, Assistant Professor of Law,
University of Wyoming College of Law,
Laramie, WY, for amicus curiae Clinical Law
Professor in support of Defendant-Appellant.

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S ARAH A. L. MERRIAM, Circuit Judge:
Brian Maiorana, who was convicted and sentenced by the United States
District Court for the Eastern District of New York (Block, J.), appeals from the
sentence imposed on him. He contends that his constitutional right to be present
at his sentence was violated by imposition, in the written judgment, of thirteen
non-mandatory conditions of supervised release that essentially mirror the
conditions described as “standard” in §5D1.3(c) of the United States Sentencing
Guidelines. The District Court never orally (or otherwise) notified Maiorana,
before or at the sentencing hearing, of its intent to impose those thirteen
conditions.
BACKGROUND
On April 26, 2021, Maiorana pled guilty to possession of a firearm and
ammunition following a felony conviction, in violation of 18 U.S.C. §922(g)(1).
The government and Maiorana each filed a sentencing memorandum, neither of
which discussed potential conditions of supervised release. In the pre-sentence
report (“PSR”), the Probation Office recommended that Maiorana’s sentence
include two years of supervised release, subject to seven “special” conditions,
one of which requires that Maiorana receive a mental health evaluation and, if

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deemed necessary, treatment, and that he contribute to the cost of those services
(the “Mental Health Condition”). Other than these seven special conditions, the
PSR did not recommend or mention any other conditions of supervised release.
On May 18, 2022, the District Court sentenced Maiorana to 36 months of
imprisonment to be followed by three years of supervised release. The District
Court orally imposed each of the special conditions of supervised release
recommended in the PSR, subject to the modification that Maiorana would not be
required to contribute to the cost of mental health services. See App’x at 87.
Summarizing the sentence, the District Court stated: “So it will be 36 months
followed by three years of supervised release with all of these conditions that I
articulated before. There will be general conditions of supervised release as well,
which will be part and parcel of the judgment.” Id. at 106. The District Court
gave no indication of what the “general conditions” would be. Id. There was no
mention of either the mandatory or the discretionary “standard” conditions that
were later imposed.
The written judgment entered on May 23, 2022, imposed twenty-four
conditions of supervised release, including: the seven special conditions that
were recommended in the PSR and discussed at sentencing, including a

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requirement that Maiorana contribute to the cost of any required mental health
services, contrary to what the District Court had stated orally at the sentencing
hearing; thirteen additional discretionary conditions, substantially similar to
those described as “standard” conditions in §5D1.3(c) of the Sentencing
Guidelines;1 and four mandatory conditions, each of which is required by 18
U.S.C. §3583(d).2 See App’x at 110-12.
On appeal, Maiorana and the government agree that, because the
provision of the written judgment requiring Maiorana to contribute to the cost of
mental health services contradicts the District Court’s oral pronouncement at the
sentencing proceeding, that requirement must be eliminated. Maiorana further
argues that we must vacate the thirteen “standard conditions of supervision”
because the District Court failed to pronounce those conditions in his presence at
sentencing. For the reasons set forth below, we agree with Maiorana.
1 The thirteen “standard conditions of supervision” imposed in the judgment are
substantively identical to the conditions set forth in Guidelines §5D1.3(c), with only
small variances. For example, while the Guidelines say “the defendant shall” do certain
things, the judgment instructs Maiorana directly, stating “you must.” Compare U.S.S.G.
§5D1.3(c), with App’x at 112.
2 At sentencing, the District Court orally indicated that it would waive the mandatory
drug testing requirement, as permitted by 18 U.S.C. §3583(d), but the written judgment
did not in fact waive that requirement. Compare App’x at 88, with App’x at 110. Maiorana
does not challenge this inconsistency on appeal.

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DISCUSSION
I. Standard of Review
“[W]hether the spoken and written terms of a defendant’s sentence differ
impermissibly” is “a question of law” that we review de novo. United States v.
Washington, 904 F.3d 204, 207 (2d Cir. 2018); see also United States v. Reeves, 591
F.3d 77, 80 (2d Cir. 2010) (“We review de novo questions of law arising from the
imposition of a condition of supervised release.”). The government asked, in its
original briefing to the panel, that we review only for plain error. See Appellee’s
Br. at 16; see also United States v. Williams, 998 F.3d 538, 540 (2d Cir. 2021) (per
curiam).3 “But plain error review is not always warranted in the sentencing
context.” United States v. Matta, 777 F.3d 116, 121 (2d Cir. 2015); see also United
States v. Green, 618 F.3d 120, 122 (2d Cir. 2010) (per curiam) (holding that when a
defendant is “deprived of any opportunity to object,” strict plain error review is
not appropriate). “[W]hen the point of law on appeal is a term of the defendant’s
sentence and the defendant lacked prior notice in the district court that the term
3 The government’s en banc briefing focuses, appropriately, on the question of whether
Truscello should be overturned, and does not address the standard of review for
Maiorana’s individual appeal.

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would be imposed, we will review the issue de novo even if the defendant failed
to raise an objection in the district court.” Washington, 904 F.3d at 207.
Maiorana challenges aspects of his sentence that were not discussed
during his sentencing proceeding but were later added to the written judgment.
Although the “special” conditions imposed were recommended in his PSR, the
“standard” conditions were not. Maiorana and his counsel had no way of
knowing that the District Court would include in the written judgment
supervised release conditions that had not been announced at sentencing.
Because these conditions were never stated or clearly referenced by the District
Court when Maiorana was before it, Maiorana had no opportunity to object to
them at the sentencing hearing or, indeed, at any time before the entry of the
written judgment. Accordingly, we review his challenge de novo. See Washington,
904 F.3d at 207-08 (reviewing a sentencing challenge de novo because the
defendant “could not have known before issuance of the written judgment that
the District Court would include” the challenged condition); cf. Fed. R. Crim. P.
51(b) (“If a party does not have an opportunity to object to a ruling or order, the
absence of an objection does not later prejudice that party.”).

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II. The terms of a defendant’s sentence generally must be pronounced at
the sentencing proceeding.
“Both the Constitution and the Federal Rules of Criminal Procedure grant
a criminal defendant the right to be present during sentencing.” United States v.
Jacques, 321 F.3d 255, 262 (2d Cir. 2003) (citing United States v. A-Abras Inc., 185
F.3d 26, 29 (2d Cir. 1999), and Fed. R. Crim. P. 43(a)). That right is codified by
Federal Rule of Criminal Procedure 43(a)(3) and “encompasses the protections
afforded by the . . . due process clause of the fifth amendment, and the common
law right of presence.” United States v. Reiter, 897 F.2d 639, 642 (2d Cir. 1990); see
also United States v. Arrous, 320 F.3d 355, 359-60 (2d Cir. 2003) (acknowledging
that defendants have a constitutional right to be present at sentencing).
The right to presence generally requires that the terms of a defendant’s
sentence be orally pronounced by the court in the defendant’s presence at the
sentencing proceeding. See, e.g., United States v. Rosario, 386 F.3d 166, 168-69 (2d
Cir. 2004). “[I]n the event of variation between an oral pronouncement of
sentence and a subsequent written judgment, the oral pronouncement controls,”
id. at 168, “because the defendant is present at the announcement of the sentence,
but not when the judgment is later entered,” United States v. Handakas, 329 F.3d
115, 117 (2d Cir. 2003); see also A-Abras Inc., 185 F.3d at 29 (“[T]he constitutional

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right of a defendant to be present at sentencing dictates that the oral
pronouncement of sentence must control.”).
III. Our precedent allowing an exception to the pronouncement rule for
discretionary conditions is now an outlier.
In light of these principles, Maiorana asserts that the thirteen discretionary
unpronounced “standard conditions of supervision” imposed in his judgment
must be removed. As noted, it is well-established that the terms of a sentence
ordinarily must be orally pronounced in the defendant’s presence. However,
with respect to conditions of supervised release, we have departed from this
general rule. See Washington, 904 F.3d at 208. Our departure from the ordinary
requirement was articulated in United States v. Truscello, in which we held that
mandatory conditions of supervised release4 and the non-mandatory conditions
described as “standard” in §5D1.3(c) of the Guidelines could be subsequently
added to the sentence after the sentencing proceeding and outside the presence
4 There are only a handful of mandatory conditions of supervised release that a
sentencing court “shall order”; those are set forth in the first paragraph of 18 U.S.C.
§3583(d). All other conditions of supervised release are non-mandatory, or
“discretionary,” and a court “may order” them where appropriate. See id. §3583(d)(1), (2),
(3). Within the category of “discretionary” conditions are those commonly referred to as
“standard” and others generally referred to as “special.” Cf. United States v. Arguedas, 134
F.4th 54, 69 (2d Cir. 2025) (discussing “mandatory, standard, and . . . special conditions
of supervised release”).

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of the defendant. 168 F.3d 61, 63-64 (2d Cir. 1999). We held that the subsequent
addition of the non-mandatory conditions was permissible because the
conditions challenged were “[i]mplicit in the very nature of supervised release
[because they] are necessary to effect its purpose,” or were “basic administrative
requirements essential to the functioning of the supervised release system.” Id. at
62, 63 (citation and quotation marks omitted).
The “standard” conditions set forth in §5D1.3(c) have been revised since
the 1999 issuance of Truscello. See Amendment 803, Supplement to Appendix C –
Amendments to the Guidelines Manual (Nov. 1, 2016). Nonetheless, some of the
surviving conditions are substantially similar to those on which we ruled in
Truscello. To the extent that the §5D1.3(c) conditions imposed on Maiorana
substantially replicate those on which we ruled in Truscello, the rule of stare
decisis ordinarily would compel affirmance. See United States v. Smith, 949 F.3d 60,
65 (2d Cir. 2020) (explaining that, “ordinarily,” “a panel of our Court is bound by
the decisions of prior panels” (citation and quotation marks omitted)). But
Maiorana’s challenge has drawn our attention to recent developments in the law.
A new national consensus has emerged on this question. In recent years, nine
circuits have held that sentencing courts are required to orally pronounce (either

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expressly or by reference) all non-mandatory — or, put differently, discretionary
— conditions of supervised release. Our position, dictated by Truscello, is now a
clear outlier.
In 2020, in what it described as a “return to first principles,” the Fifth
Circuit overruled its own precedent on this question and held: “If a condition is
required, making an objection futile, the court need not pronounce it. If a
condition is discretionary,” as is each condition listed in §5D1.3(c), “the court
must pronounce it to allow for an objection.” United States v. Diggles, 957 F.3d
551, 557, 559 (5th Cir. 2020) (en banc). The Fifth Circuit grounded this holding in a
defendant’s constitutional right to be present at sentencing, based on the
underlying Fifth Amendment “right to mount a defense.” Id. at 560; see also id. at
557 (“[T]he right to be present at proceedings that lack testimony (usually true of
sentencings) comes from the Fifth Amendment’s Due Process Clause.”). In 2023,
the Ninth Circuit likewise reversed its prior precedent – which had expressly
relied on Truscello5 – and held that defendants have a due process right to oral
5 See United States v. Napier, 463 F.3d 1040, 1043 (9th Cir. 2006) (citing Truscello for the
proposition that “imposition of these mandatory and standard conditions is deemed to
be implicit in an oral sentence imposing supervised release”), overruled by United States
v. Montoya, 82 F.4th 640 (9th Cir. 2023) (en banc).

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pronouncement of all non-mandatory conditions at the sentencing proceeding.
See United States v. Montoya, 82 F.4th 640, 650-51 (9th Cir. 2023) (en banc). The
Fourth, Sixth, Seventh, Eighth, Tenth, Eleventh, and D.C. Circuits have all
reached similar conclusions in recent years. See United States v. Rogers, 961 F.3d
291, 296-99 (4th Cir. 2020); United States v. Hayden, 102 F.4th 368, 371-74 (6th Cir.
2024); United States v. Anstice, 930 F.3d 907, 910 (7th Cir. 2019); United States v.
Walker, 80 F.4th 880, 882-83 (8th Cir. 2023); United States v. Geddes, 71 F.4th 1206,
1215 (10th Cir. 2023); United States v. Rodriguez, 75 F.4th 1231, 1246 (11th Cir.
2023); United States v. Matthews, 54 F.4th 1, 4-6 (D.C. Cir. 2022).6
The decisions of our sister courts forming this new consensus vary slightly,
but all agree on a fundamental premise: Sentencing courts must notify the
defendant at sentencing of all non-mandatory conditions of supervised release.
6 We have been unable to locate any published decision of the Third Circuit directly
addressing the scope of the pronouncement requirement. Although the First Circuit has
commented on the matter in dicta and sometimes indicated passing approval for the
imposition of “standard” conditions without oral pronouncement, it has neither
squarely confronted nor clearly answered this question. See, e.g., United States v. Tulloch,
380 F.3d 8, 13, 14 n.8 (1st Cir. 2004), as amended (Sept. 17, 2004) (per curiam); United
States v. Sepulveda-Contreras, 466 F.3d 166, 169 (1st Cir. 2006); United States v. Nardozzi, 2
F.4th 2, 8 (1st Cir. 2021).

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Both because Truscello is now an outlier, and because of the critical
constitutional issues it implicates, we take this opportunity, proceeding en banc,
to re-examine the exception to the pronouncement rule that Truscello created.
IV. A defendant’s right to presence requires that all non-mandatory
conditions of supervised release, including the “standard” conditions
described in Guidelines §5D1.3(c), be pronounced at sentencing.
Truscello departed from the general rule that “a defendant must be present
at pronouncement of sentence.” Washington, 904 F.3d at 208. Although a version
of this rule is stated in Rule 43(a),7 the defendant’s right to presence “is of
constitutional dimension” and grounded in Fifth Amendment due process
protections, and, accordingly, we have recognized that it is “critical that the
defendant be present when sentence is orally imposed.” United States v. Agard, 77
F.3d 22, 24 (2d. Cir. 1996). Indeed, as the Fifth Circuit noted, sentencing is
“usually the critical stage [of a criminal case] these days when well over 95% of
federal defendants plead guilty.” Diggles, 957 F.3d at 558.8
7 Rule 43(a) reads as follows: “Unless this rule, Rule 5, or Rule 10 provides otherwise,
the defendant must be present at . . . sentencing.” Fed. R. Crim. P. 43(a).
8 We also note that “the public itself ‘has an independent interest in requiring a [formal]
public sentencing in order to assure the appearance of justice.’” United States v. Ramirez,
514 F. App’x 42, 45 (2d Cir. 2013) (summary order) (quoting Agard, 77 F.3d at 24).

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Despite the core constitutional rights at stake, Truscello did not delve into
these issues. See generally 168 F.3d at 62-64. With little discussion, Truscello
authorized departure from the constitutional norm for conditions of supervised
release that were believed to be “[i]mplicit in the very nature of supervised
release [because they] are necessary to effect its purpose,” id. at 62 (emphasis
added), or to constitute “basic administrative requirements essential to the
functioning of the supervised release system,” id. at 63 (emphasis added) (citation
and quotation marks omitted).9
It is difficult to reconcile the framing of discretionary conditions as
“necessary” to effect the purpose of supervised release, id. at 62, with the fact that
their imposition is, by definition, optional – especially because Congress has
made other conditions mandatory (and, therefore, implicitly necessary) in every
9 Truscello’s holding has since been applied to other non-mandatory conditions, which,
like the “standard” conditions listed in §5D1.3(c), were deemed “basic administrative
requirements that are necessary to supervised release.” United States v. Thomas, 299 F.3d
150, 154 (2d Cir. 2002) (citation and quotation marks omitted); see also United States v.
Asuncion-Pimental, 290 F.3d 91, 94 (2d Cir. 2002); United States v. Handakas, 329 F.3d 115,
117 (2d Cir. 2003) (collecting cases). We note that this line of cases has sometimes
created confusion in the trial courts regarding when and how discretionary conditions
of supervised release must be pronounced, see Thomas, 299 F.3d at 156 (discussing “the
problems presented by Truscello” and its progeny), which further underscores the need
for our holding today that all non-mandatory conditions must be pronounced, either
explicitly or by reference, at sentencing in the presence of the defendant.

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sentence of supervised release. See 18 U.S.C. §3583(d). Indeed, the fact that the
Sentencing Guidelines explicitly state that the “‘standard’ conditions are
recommended for supervised release,” U.S.S.G. §5D1.3(c) (emphasis added),
indicates that neither the Sentencing Commission nor Congress regarded them as
necessary to every term of supervised release.10
Accordingly, we find that the distinction between mandatory and
discretionary conditions as denoted in 18 U.S.C. §3583(d) provides the proper
framework to determine whether pronouncement at sentencing is required,
grounded in the constitutional principles underlying a defendant’s right to
presence. Mandatory conditions may be imposed without prior notice or
pronouncement. Discretionary conditions may not.
“[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). A discretionary condition, by definition, need not be imposed and,
10 Indeed, in the November 1, 1998, Amendments to the Guidelines Manual, the term
“(Policy Statement)” was inserted in §5D1.3(c) “to indicate that discretionary (as
opposed to mandatory) conditions are advisory policy statements of the Commission,
not binding guidelines.” Amendment 584, Supplement to Appendix C – Amendments to
the Guidelines Manual (Nov. 1, 1998) (emphasis added).

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accordingly, can be contested. The pronouncement of discretionary conditions
therefore “contribute[s] to the fairness of the procedure,” id., by providing a
defendant the “opportunity to object . . . and seek tailored conditions of
supervised release limited to what is ‘reasonably necessary’ to meet sentencing
objectives,” Walker, 80 F.4th at 882 (quoting 18 U.S.C. §3583(d)(2)); see also Diggles,
957 F.3d at 558 (“[P]ronouncement of a supervised release condition [is]
necessary to give the defendant a sufficient opportunity to defend . . . when
imposition of that condition is discretionary, because then the defendant can
dispute whether it is necessary or what form it should take.” (citation and
quotation marks omitted)); cf. United States v. Thomas, 299 F.3d 150, 156 (2d Cir.
2002) (recognizing that oral pronouncement “serves the salutary function of
insuring that a defendant fully understands the contours of his punishment at a
time when any questions he or his lawyer may have can be explored and
resolved in person”).
We therefore reject Truscello’s ruling that a district court may add
discretionary conditions to the written judgment even when they are deemed
“[i]mplicit in the very nature of supervised release [because they] are necessary
to effect its purpose,” 168 F.3d at 62, or considered “basic administrative

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requirements essential to the functioning of the supervised release system,” id. at
63 (citation and quotation marks omitted). We hold that a sentencing court
intending to impose non-mandatory conditions of supervised release, including
the “standard” conditions described in §5D1.3(c), must notify the defendant
during the sentencing proceeding; if the conditions are not pronounced, they
may not later be added to the written judgment.11 A sentencing court need not
read the full text of every condition on the record. But it must, at the very least,
as part of the pronouncement of the sentence in the presence of the defendant
during the sentencing proceeding, expressly adopt or specifically incorporate by
reference particular conditions that have been set forth in writing and made
available to the defendant in the PSR, the Guidelines, or a notice adopted by the
court.12 This process ensures that defendants are afforded the constitutionally
grounded protections encompassed by the right to be present at sentencing.
11 The new rule of criminal procedure announced by this ruling shall apply to future cases
and cases currently on direct review, but it does not apply retroactively on collateral
review. See Edwards v. Vannoy, 593 U.S. 255, 262-63 (2021); accord Montoya, 82 F.4th at 653
n.16.
12 There is an easy way to ensure that a defendant has notice of and an opportunity to
object to all proposed conditions: Include them in the PSR. At sentencing, a District Court
“must verify that the defendant and the defendant’s attorney have read and discussed
the presentence report and any addendum to the report.” Fed. R. Crim. P. 32(i)(1)(A).
And a defendant must be given an opportunity to object to the PSR. See Fed. R. Crim. P.

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In light of this ruling, we find that the “standard” conditions of supervised
release that Maiorana challenges were not lawfully imposed upon him.
V. The condition requiring Maiorana to contribute to the cost of mental
health services must be corrected.
Both parties agree that the condition imposed in the written judgment
requiring Maiorana to contribute to the cost of mental health services
impermissibly conflicts with the District Court’s oral pronouncement of sentence.
In light of this “clear discrepancy[,] . . . the oral pronouncement controls,” and
remand is required so that the District Court can conform the written judgment
to the orally pronounced sentence. United States v. Peguero, 34 F.4th 143, 165 (2d
Cir. 2022).
CONCLUSION
For the reasons stated, we find that the written judgment’s imposition of
the thirteen challenged discretionary conditions of supervised release, as well as
the payment provision of the mental health condition previously discussed,
constituted “an impermissible modification of the spoken sentence.” Washington,
32(f). If all proposed discretionary conditions are listed in the PSR, that would assure a
sentencing court (and a reviewing court) that a defendant has received notice of all such
conditions and had a meaningful opportunity to object. That practice – while not required
– would efficiently avoid most challenges of the sort raised here.

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904 F.3d at 208. We therefore REMAND this matter to the District Court with
instructions to vacate these portions of the judgment.13 The written judgment
shall be amended to strike the requirement that Maiorana contribute to mental
health services. As to the thirteen “standard” conditions, if the District Court
intends to impose them in the revised judgment, it must convene a hearing in the
presence of the defendant and must advise the defendant that those conditions
will be imposed, either through a full recitation or through the express adoption
of particular conditions that have been set forth in writing and made available to
Maiorana in the PSR, the Guidelines, or a notice adopted by the court.14 If, on the
other hand, the court does not choose to reimpose the thirteen “standard”
conditions, it may simply strike them from the judgment (along with the
13 The appropriate remedy for the district court’s error is a limited remand to address the
thirteen conditions of supervised release that were not properly imposed, not a full
resentencing.
14 Maiorana has a right to a hearing, but he may elect to waive it. The District Court may
provide Maiorana with written notice of the conditions it intends to impose on remand.
Maiorana may elect not to demand a hearing regarding those conditions and insist on
their pronouncement in his presence. He may instead elect to argue his position in writing
only, or to simply agree with the imposition of the conditions proposed. Cf. United States
v. Lewis, 125 F.4th 69, 74 (2d Cir. 2025) (observing that a defendant may “decline[] the
district court’s invitation to read aloud a condition of supervised release referenced in the
PSR”).

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condition requiring Maiorana to contribute to the cost of his mental health
services) without need to conduct a new sentencing proceeding.

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22-1115
United States v. Maiorana
MENASHI , Circuit Judge, dissenting:
Our court once agreed that “[s]entencing is a responsibility
heavy enough without our adding formulaic or ritualized burdens.”
United States v. Cavera, 550 F.3d 180, 193 (2d Cir. 2008) (en banc).
So much for that. Today the court imposes a “new rule of criminal
procedure” that does nothing but force district courts to utter specific
words when imposing a sentence of supervised release. Ante at
18 n.11.
We previously said that we would “not require district courts
to engage in the utterance of ‘robotic incantations’ when imposing
sentences.” United States v. Smith, 949 F.3d 60, 66 (2d Cir. 2020)
(quoting United States v. Sindima, 488 F.3d 81, 85 (2d Cir. 2007)).
Twenty-six years ago, we recognized that when a district court
pronounces a sentence of “supervised release,” the defendant will
understand that the sentence presumptively includes the mandatory
and standard conditions that “are almost uniformly imposed by the
district courts and have become boilerplate.” United States v. Truscello,
168 F.3d 61, 63 (2d Cir. 1999). Given our longstanding precedent that
a written judgment “may properly serve the function of resolving
ambiguities in orally pronounced sentences,” United States v. Moyles,
724 F.2d 29, 30 (2d Cir. 1983), an oral reference to “supervised release”
at least could be understood to include the default conditions of
supervised release that are imposed in virtually all cases—and that is
all that is necessary to justify the Truscello rule.
If a district court intends to depart from the default conditions,
one would expect it to say so. Indeed, we have recognized that “the
‘standard’ conditions provided in § 5D1.3(c) are presumed suitable in
all cases” and are not “contingent on the presence of specific factors in

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2
each case.” United States v. Asuncion-Pimental, 290 F.3d 91, 94 (2d Cir.
2002) (emphasis added). So a district court need not provide a
separate justification for imposing the standard conditions. When
supervised release itself is justified, the standard conditions are
justified.
The majority opinion does not—at least expressly—question
that precedent. Its holding simply requires the district court to
robotically incant the words “standard conditions.” If it fails to do so,
then we will vacate the sentence and remand for a new hearing. In
this case, the district court said it would impose “general conditions
of supervised release as well, which will be part and parcel of the
judgment.” App’x 106. Everyone knows that statement referred to
“the so-called standard conditions” that are “basic administrative
requirements essential to the functioning of the supervised release
system” and “have become boilerplate.” Truscello, 168 F.3d at 63
(internal quotation marks and alteration omitted). But the phrase
“general conditions” does not quite match the magic words “standard
conditions,” so the majority vacates the sentence and remands for a
new hearing at which the district court must confirm what everyone
already understands: the district court intended to require the
defendant to “report to the probation officer at that officer’s direction;
answer truthfully all inquiries by the probation officer and follow the
instructions of the probation officer; and notify the probation officer
at least ten days prior to any change of residence or employment.” Id.
at 63-64 (citations omitted) (describing U.S.S.G. § 5D1.3(c)).
What a pointless waste of time. Because “[s]entencing is a
responsibility heavy enough without our adding formulaic or
ritualized burdens,” Cavera, 550 F.3d at 193, I dissent.

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3
I
The majority opinion acknowledges that “stare decisis
ordinarily would compel affirmance.” Ante at 11. But the majority
departs from stare decisis and overrules Truscello for three reasons:
Truscello “implicates” some “critical constitutional issues,” it does not
reflect the statutory distinction between mandatory and discretionary
conditions, and it fails to conform to a “new national consensus”
about how to impose standard conditions of supervised release. Id. at
11-14. None of these reasons justifies replacing our longstanding
precedent with a new formalistic ritual.
A
The majority insists that “[d]espite the core constitutional rights
at stake, Truscello did not delve into these issues.” Id. at 15. That is not
true. Truscello began its analysis by recognizing the “requirement that
the defendant be present for his sentence,” which is “violated” when
the oral pronouncement conflicts with the written judgment.
Truscello, 168 F.3d at 62. Because of that requirement, “where there is
a direct conflict between an unambiguous oral pronouncement of
sentence and the written judgment and commitment[,] the oral
pronouncement must control.” Id. (alterations omitted) (quoting
United States v. Marquez, 506 F.2d 620, 622 (2d Cir. 1974)).
But “it is equally well established that it is permissible for the
written judgment to resolve genuine ambiguities in the oral
sentence,” so when “there was no real inconsistency but rather an
ambiguity, we have upheld the written judgment.” Id. at 62-63 (citing
United States v. Pugliese, 860 F.2d 25, 30 (2d Cir. 1988); Moyles, 724 F.2d
at 30). The question in Truscello was whether the written judgment
“reflected a clarification of what the oral pronouncement meant by

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4
‘supervised release.’” Id. at 63. Our court sensibly concluded that it
did.
Well before Truscello we recognized that the standard
conditions are “basic administrative requirement[s] essential to the
functioning of the supervised release system.” United States v. Smith,
982 F.2d 757, 764 (2d Cir. 1992). We have repeatedly—and recently—
reaffirmed that “[t]hose conditions ‘are basic administrative
requirements, generally imposed by sentencing courts, and plainly
appropriate to implement supervised release.’” United States v.
Arguedas, 134 F.4th 54, 69-70 (2d Cir. 2025) (quoting United States v.
Jacques, 321 F.3d 255, 263 (2d Cir. 2003)); see also United States v. Sims,
92 F.4th 115, 119 n.1 (2d Cir. 2024) (describing “the standard
conditions” as “necessary to the administration of supervised release”
and “presumed suitable in all cases”) (quoting United States v. Thomas,
299 F.3d 150, 153-54 (2d Cir. 2002)). That is why the Sentencing
Guidelines identify the conditions as “standard.” U.S.S.G. § 5D1.3(c).
As a result, we correctly decided that the standard conditions “are
generally so appropriate to effect the purpose of supervised release
that any argument” that the conditions “conflict” with an oral
sentence of supervised release “would be disingenuous.” Truscello,
168 F.3d at 64.
1
Nothing in the Constitution prevents us from recognizing that
each of the standard conditions “presumptively applies to all terms
of supervised release.” Sims, 92 F.4th at 120. A defendant has the
“right to be present at a proceeding whenever his presence has a
relation, reasonably substantial, to the ful[l]ness of his opportunity to
defend against the charge.” United States v. Gagnon, 470 U.S. 522, 526
(1985) (internal quotation marks omitted). That right “is a condition

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5
of due process to the extent that a fair and just hearing would be
thwarted by his absence, and to that extent only.” Id. (internal
quotation marks omitted). In this context, the right would be violated
when the defendant lacks sufficient notice of a condition such that he
does not have the opportunity to object to the condition at sentencing.
Truscello entails no violation of that right. Because of Truscello,
a defendant understands that an oral pronouncement of “supervised
release” presumptively refers to the mandatory and standard
conditions that “are almost uniformly imposed by the district courts
and have become boilerplate.” Truscello, 168 F.3d at 63. Accordingly,
if a defendant believes that his circumstances require a departure
from the standard conditions that presumptively apply, he may raise
that objection during sentencing when the district court imposes a
term of supervised release. See, e.g., United States v. Bryant, 976 F.3d
165, 183-84 (2d Cir. 2020) (accepting Truscello but agreeing with a
defendant’s objection to the standard condition prohibiting
communication with convicted felons because in the particular case it
would interfere with a familial relationship).
The majority quotes United States v. Jacques for the proposition
that “[b]oth the Constitution and the Federal Rules of Criminal
Procedure grant a criminal defendant the right to be present during
sentencing.” Ante at 9 (quoting Jacques, 321 F.3d at 262). But Jacques
recognized that right alongside the Truscello rule that “the mandatory
and standard Guidelines conditions are basic administrative
requirements, generally imposed by sentencing courts, and plainly
appropriate to implement supervised release, and, therefore, need not
be mentioned orally at sentencing.” Jacques, 321 F.3d at 263. Our court
perceived no tension between the Truscello rule and the right to be
present at sentencing—because there is none.

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6
2
If the majority were correct that, absent an oral pronouncement,
the defendant is denied the opportunity to object to the standard
conditions, then there would be no justification for imposing the
mandatory conditions without an oral pronouncement either. The
majority claims that “the court need not pronounce” a mandatory
condition because any objection to a mandatory condition would be
“futile.” Ante at 12. But that is not true. Some mandatory conditions
depend on the satisfaction of a factual predicate that may be
disputed, 1 and the imposition of mandatory conditions may be
subject to constitutional challenges.2
1 See, e.g., 18 U.S.C. § 3583(d) (providing that a district court shall order a
defendant to participate in the collection of a DNA sample “if the collection
of such a sample is authorized” by federal law); United States v. Myers,
89 F. App’x 298, 299 (2d Cir. 2004) (vacating the imposition of the
mandatory condition based on the defendant’s argument that “the offense
underlying his conviction does not require that he cooperate in the
collection of a DNA sample under the DNA Analysis Backlog Elimination
Act of 2000”).
2 See, e.g., United States v. Carmichael, 343 F.3d 756, 759 (5th Cir. 2003)
(explaining that the defendants argued “that they should not be required to
provide a DNA sample” because the mandatory condition of DNA
collection “is unreasonable under the Fourth Amendment, both as to
prisoners and as to criminals on supervised release”); United States v. Kimler,
335 F.3d 1132, 1137-38 (10th Cir. 2003) (explaining that the defendant
challenged “the condition of supervised release requiring him to cooperate
in the collection of a sample of his DNA” because “his offenses are not
qualifying offenses under the DNA Analysis Backlog Elimination
Act … because they did not involve the sexual abuse or exploitation of
children; the DNA Act violates the Fourth Amendment’s prohibition
against unreasonable searches and seizures; and, the DNA Act violates the
doctrine of separation of powers”).

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7
Most obviously, the mandatory condition requiring drug
testing expressly provides that the condition “may be ameliorated or
suspended by the court.” 18 U.S.C. § 3583(d). For that reason, “[a]
district court has broad discretion in deciding whether to exercise its
authority to ameliorate or suspend this mandatory requirement.”
United States v. Paul, 542 F.3d 596, 600 (7th Cir. 2008); see also United
States v. Biddles, 707 F. App’x 461, 464 (9th Cir. 2017) (“[T]he district
court had the discretion to suspend the condition, if it saw ‘a low risk
of future substance abuse.’”) (quoting 18 U.S.C. § 3563(a)(5)); United
States v. Cervantes, 420 F.3d 792, 795-96 (8th Cir. 2005) (“[T]he court
had discretion to ameliorate or suspend the mandatory drug-testing
condition if [the defendant] posed a low risk of future substance
abuse.”). In this very case, as the majority recognizes, the district court
“orally indicated that it would waive the mandatory drug testing
requirement, as permitted by 18 U.S.C. § 3583(d).” Ante at 6 n.2.3 In
many cases, defendants object to the imposition of the mandatory
drug-testing condition. An appellate court will review the imposition
of the condition for abuse of discretion—and it may vacate and
remand for resentencing based on the defendant’s objection.4
3 See App’x 88 (“I don’t think he needs any mandatory drug treatment
testing, so I’m not going to require that. I see no evidence that he needs
that.”).
4 See, e.g., United States v. Dotson, 715 F.3d 576, 588 (6th Cir. 2013)
(remanding “to the district court so that it could explain why these
conditions of supervised release are warranted” when “[t]here is simply
nothing in the record indicating whether [the defendant] has previously
abused drugs and would be at risk for future abuse”) (internal quotation
marks omitted); United States v. Suastegui, 513 F. App’x 637, 639 n.4 (9th Cir.
2013) (remanding for the district court to conform the sentence to the oral
pronouncement of only one drug test because the defendant “did not have
a history of drug or alcohol abuse, and the statutory requirements of testing

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8
Sometimes it matters whether the defendant raised an objection
to the mandatory condition before the district court. An appellate
court might conclude that the defendant, “having failed to object in
the district court to the level of drug testing set by the court, has not
met the burden on appeal of showing that the condition was an abuse
of discretion.” United States v. Jeremiah, 493 F.3d 1042, 1047 (9th Cir.
2007). The majority opinion holds, however, that when the district
court does not pronounce a condition of supervised release, the
defendant has been denied the opportunity to object. If that is correct,
then why would the majority not require that the drug-testing
condition be pronounced? Perhaps the majority has concluded that
all objections to the drug-testing condition are necessarily “futile”
because the majority does not believe that such an imposition would
provided by 18 U.S.C. § 3583(d) may be ameliorated or suspended if a low
risk of future substance abuse is indicated,” so “there was adequate basis
for the district court’s oral pronouncement” modifying the default
mandatory condition) (citation omitted); United States v. Inman, 666 F.3d
1001, 1005 (6th Cir. 2012) (“Nothing in the record suggests that [the
defendant] has any problem with alcohol or drug dependence; yet, he is
now … required to submit to periodic drug testing, and required to keep
the probation office informed of any prescription medications in his
possession. … Where appropriate, the mandatory condition of drug testing
‘may be ameliorated or suspended by the court for any individual
defendant if the defendant’s presentence report or other reliable sentencing
information indicates a low risk of future substance abuse by the
defendant.’ … Because [the defendant] appears to present a low risk of
future substance abuse, the district court should explain why these
conditions of supervised release are warranted.”); United States v. Foote,
413 F.3d 1240, 1253 (10th Cir. 2005) (“[T]he district court erroneously
thought itself bound to impose drug testing as a condition of
probation. … On remand, the district court should therefore consider
whether to ameliorate or suspend the drug testing condition pursuant to its
discretionary authority under 18 U.S.C. § 3563(a)(5).”).

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9
ever represent an abuse of discretion. Ante at 12. That conclusion
would raise its own “constitutional issues.”5
More likely, the majority knows that a defendant will
understand that the mandatory conditions presumptively apply, so
the defendant will object at sentencing if he seeks a departure from
the default conditions of supervised release. That is correct—and the
same argument applies to the standard conditions.6 “All citizens are
presumptively charged with knowledge of the law,” Atkins v. Parker,
472 U.S. 115, 130 (1985), and that includes not only statutory
requirements but also the guidelines standards that must be “the
starting point and the initial benchmark” for all sentences, Gall v.
United States, 552 U.S. 38, 49 (2007). “Because the Sentencing
Guidelines have become a critical facet of federal criminal
proceedings[,] familiarity with the structure and basic content of the
Guidelines has become a necessity for counsel who seek to give
effective representation.” Johnson v. United States, 313 F.3d 815, 818
(2d Cir. 2002) (internal quotation marks and alterations omitted).
5 See Jeremiah, 493 F.3d at 1046 n.2 (“The Supreme Court has repeatedly held
that mandatory drug testing ‘constitutes a “search” subject to the demands
of the Fourth Amendment.’ Special needs, such as supervised release,
justify drug testing but such searches must be reasonable under the
circumstances.”) (citation omitted) (quoting Vernonia Sch. Dist. 47J v. Acton,
515 U.S. 646, 652 (1995)).
6 Cf. United States v. Hayden, 102 F.4th 368, 373 (6th Cir. 2024) (explaining
that “the mandatory conditions listed on the standard judgment form are
commonsense conditions such as not committing another federal, state, or
local crime or possessing a controlled substance,” so a defendant “had
appropriate notice of his mandatory supervised-release conditions merely
because they are statutorily required”).

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10
As we rightly held in Truscello, “explicit reference” to each
boilerplate “condition of supervision is not essential to the
defendant’s right to be present at sentencing.” 168 F.3d at 63.
Understanding the standard conditions to presumptively apply to a
sentence of supervised release does not raise any constitutional
concerns.
B
The majority says that “[i]t is difficult to reconcile the framing
of discretionary conditions as ‘necessary’ to effect the purpose of
supervised release with the fact that their imposition is, by definition,
optional—especially because Congress has made other conditions
mandatory (and, therefore, implicitly necessary) in every sentence of
supervised release.” Ante at 15-16 (citation omitted) (quoting
Truscello, 168 F.3d at 62). But the distinction between mandatory and
discretionary conditions did not elude the court when we decided
Truscello. We recognized the distinction but concluded that it did not
determine the outcome of the case. “While we have recognized that
‘the Sentencing Reform Act eliminated standard conditions, replacing
them with mandatory and discretionary conditions,’” we said, “the
fact that the discretionary conditions are still labeled ‘standard’
within the Guidelines evidences the extent to which they are regularly
imposed and relied on by the district courts.” Truscello, 168 F.3d at
63 n.3 (quoting Smith, 982 F.2d at 764).
No one can seriously argue that it is optional for a defendant
subject to supervised release to be required to “report to the probation
officer as instructed” or to “answer truthfully the questions asked by
the probation officer.” U.S.S.G. § 5D1.3(c). Whether a condition is
necessary to the administration of supervised release does not depend

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11
on whether it is mandatory or discretionary under the Sentencing
Reform Act.
Those conditions of supervised release that Congress has
statutorily mandated are “mandatory,” and those conditions that the
Sentencing Commission has identified as “standard” are
“discretionary.” That distinction follows from the simple fact that
Congress has the power to enact statutes while the Sentencing
Commission has the power to promulgate “policy statements
regarding application of the guidelines or any other aspect of
sentencing,” which includes “the conditions of probation and
supervised release.” 28 U.S.C. § 994(a)(2). But the point of the
Sentencing Reform Act was for the Sentencing Commission rather
than Congress to “provide certainty and fairness in meeting the
purposes of sentencing.” Id. § 991(b)(1)(B).
“Congress established the Commission to formulate and
constantly refine national sentencing standards.” Kimbrough v. United
States, 552 U.S. 85, 108 (2007). The Commission “has the capacity
courts lack to base its determinations on empirical data and national
experience, guided by a professional staff with appropriate
expertise.” Id. at 109 (internal quotation marks omitted). Congress
obviously wanted the courts to pay attention to the policy statements
of the Sentencing Commission: it authorized courts to impose “a
further condition of supervised release” only to the extent that the
condition “is consistent with any pertinent policy statements issued
by the Sentencing Commission.” 18 U.S.C. § 3583(d)(3). Even under
an advisory guidelines regime, the Sentencing Reform Act still
“requires judges to consider … the pertinent Sentencing Commission
policy statements.” United States v. Booker, 543 U.S. 220, 259-60 (2005).
The Sentencing Reform Act provides no support for the proposition
that Congress wanted courts to treat the standard conditions as less

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12
necessary than courts did before the Sentencing Commission
enumerated them.
Congress did not believe that § 3583(d) contains an exclusive
list of the necessary conditions of supervised release. And in fact it
does not.7 “Congress provided for supervised release to facilitate a
‘transition to community life,’” Mont v. United States, 587 U.S. 514, 523
(2019) (quoting United States v. Johnson, 529 U.S. 53, 59 (2000)), which
means that probation officers must “monitor an individual on
supervised release, such that they can act as the ‘eyes and ears’ for the
court,” United States v. Oliveras, 96 F.4th 298, 311 (2d Cir. 2024)
(quoting United States v. Reyes, 283 F.3d 446, 455 (2d Cir. 2002)). The
mandatory conditions do not even attempt to facilitate that
supervision. In many cases, the mandatory conditions are almost
meaningless. Imagine a defendant who did not commit a specific
offense that triggers additional conditions and who does not show a
risk of substance abuse or owe restitution. The mandatory conditions
will require that this defendant “not commit another Federal, State,
or local crime during the term of supervision” and “not unlawfully
possess a controlled substance.” 18 U.S.C. § 3583(d). The defendant
might also need to “cooperate in the collection of a DNA sample” if
the collection “is authorized” by law. Id. These mandatory conditions
are equivalent to ordering the defendant to obey the law. The
conditions have nothing to do with what is necessary to administer
supervised release.
7 Cf. United States v. Walker, 80 F.4th 880, 882 (8th Cir. 2023) (“As a practical
matter, it would be virtually impossible to supervise a defendant or verify
compliance with the two special conditions that were orally pronounced
without at least some of the standard conditions of supervised release being
imposed.”).

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13
Congress tasked the Sentencing Commission with elaborating
on those conditions “essential to the functioning of the supervised
release system.” Truscello, 168 F.3d at 63 (quoting Smith, 982 F.3d at
764). In a forthcoming amendment to the guidelines, the Sentencing
Commission will reiterate that a district court may modify the
standard conditions in appropriate cases. But “[t]he Commission
nonetheless recognizes the value of a list of ‘standard’ conditions that
establish basic behavioral expectations and facilitate probation officers’
supervision. Accordingly, the amendment maintains the list of
‘standard’ conditions without change but notes the court’s authority
to impose and adjust them as appropriate.”8 The standard conditions
have been discretionary since before we decided Truscello. In that case
and others we relied on other considerations—(1) the purpose of the
standard conditions to establish basic behavioral expectations and
facilitate probation officers’ supervision and (2) the practice of district
courts in adopting the conditions as standard—to conclude that a
pronounced sentence of supervised release would be understood to
presumptively include those conditions.
The Sentencing Commission has recognized that there is no
tension between the judicial authority to modify the conditions, on
the one hand, and maintaining a list of standard conditions that set
basic expectations for supervised release, on the other. That is what
Truscello understood: the distinction between mandatory and
discretionary conditions in the Sentencing Reform Act does not
answer the question of which conditions set the basic expectations
and therefore presumptively apply when a district court orders
supervised release. See Truscello, 168 F.3d at 63 n.3.
8 Sentencing Guidelines for United States Courts, 90 Fed. Reg. 19798, 19816
(May 9, 2025) (emphasis added).

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14
C
Because it has no legal reason for abandoning Truscello, the
majority claims that it must do so to join “[a] new national consensus
[that] has emerged on this question.” Ante at 11. That is not a
persuasive reason either.
First, among those decisions of other circuits on which the
majority relies, only two appear to have overturned a prior precedent
similar to Truscello in order to adopt a requirement of oral
pronouncement. See United States v. Montoya, 82 F.4th 640, 645
(9th Cir. 2023); United States v. Diggles, 957 F.3d 551, 557 (5th Cir.
2020). The other circuits did not need to decide whether to abandon
an established default rule and therefore did not consider the weight
of stare decisis.
There are “several factors to consider in deciding whether to
overrule a past decision, including the quality of its reasoning, the
workability of the rule it established, its consistency with other related
decisions, and reliance on the decision.” Knick v. Township of Scott,
588 U.S. 180, 203 (2019) (internal quotation marks and alterations
omitted). Truscello was well-reasoned and followed logically from
other decisions holding that the standard conditions are “basic
administrative requirement[s] essential to the functioning of the
supervised release system,” Smith, 982 F.2d at 764, and that a written
judgment “may properly serve the function of resolving ambiguities
in orally pronounced sentences,” Moyles, 724 F.2d at 30. It is today’s
decision that is inconsistent with those other related decisions.9 And
Truscello established a “workable” rule that “can be understood and
9 See ante at 15-16 (stating that the standard conditions are “optional” rather
than “necessary to every term of supervised release”).

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15
applied in a consistent and predictable manner.” Dobbs v. Jackson
Women’s Health Org., 597 U.S. 215, 280-81 (2022). It has been so
understood and applied for twenty-six years. See infra Part II.A.
Abandoning the well-established rule “threatens to result in
substantial—and utterly pointless—costs.” Montoya, 82 F.4th at 664
(Collins, J., dissenting).
Second, the other circuits did not have persuasive reasons for
requiring oral pronouncement. Like the majority opinion, those
courts gestured at the “right to be present at sentencing,” United States
v. Rogers, 961 F.3d 291, 298 (4th Cir. 2020), but Truscello does not
violate that right, see supra Part I.A.1. The courts said that a district
court does not need to pronounce the mandatory conditions because
“the district court has no discretion to omit them,” Rogers, 961 F.3d at
297,10 but that is not true, see supra Part I.A.2. And the courts invoked
the “distinction between mandatory and discretionary conditions”
under the Sentencing Reform Act, United States v. Matthews, 54 F.4th
1, 4 (D.C. Cir. 2022), but that distinction does not determine which
conditions set the basic expectations that presumptively apply when
a district court orders supervised release, see supra Part I.B.
Third, the national consensus that the majority seeks to join is
illusory. The First Circuit, for example, agrees with Truscello. In this
appeal, Maiorana concedes that “the First Circuit follows a rule
similar to this Court’s.” Appellant’s Br. 26 n.7. And he is correct. The
10 See also Hayden, 102 F.4th at 373 (claiming that the district court has “no
discretion to depart from imposing them”); United States v. Geddes, 71 F.4th
1206, 1216-17 (10th Cir. 2023) (“Mandatory conditions like these do not
create a conflict because the district court has no discretion to omit them.
Any objection to these two conditions would be futile.”) (citation and
footnote omitted); Diggles, 957 F.3d at 558 (“[W]hen a condition is
mandatory, there is little a defendant can do to defend against it.”).

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16
First Circuit has held that “[d]efendants are deemed to be on
constructive notice for mandatory and standard conditions
announced for the first time in a written judgment, and therefore have
no right-to-be-present claim with respect to any such condition.”
United States v. Sepulveda-Contreras, 466 F.3d 166, 169 (1st Cir. 2006). In
an earlier case, the First Circuit explained:
On these facts, we believe that the reasoning in United
States v. Truscello applies. In Truscello, the Second Circuit
considered whether the sentencing court’s failure to
mention any conditions at all at sentencing after
imposing a term of supervised release precluded it from
subsequently including certain mandatory and standard
conditions in its written judgment. The court of appeals
held that it did not because there was no “actual” or “real
inconsistency” between the orally imposed term of
supervised release and the written judgment specifying
the conditions applicable to such term. As it explained,
implicit in the very nature of supervision is that
conditions are placed on the supervised defendant; thus,
in its view, the district court’s written judgment merely
clarified the ambiguity in the oral sentence.
United States v. Tulloch, 380 F.3d 8, 12 (1st Cir. 2004) (citations and
footnote omitted). The First Circuit emphasized that “as Truscello
indicates, standard conditions either impose requirements essential
to the basic administration of the supervised release system, or
regulate other matters necessary to effect the purpose of supervised
release,” and “are so uniformly imposed that they have become
boilerplate in federal courts.” Id. at 14 n.8.11 The First Circuit, like
Truscello, is right.
11 See also United States v. Nardozzi, 2 F.4th 2, 8 (1st Cir. 2021) (“The district
court must raise non-standard conditions of supervised release at

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17
Even those circuits that now disagree with Truscello do not
follow a uniform approach. In some circuits, a district court may
satisfy the pronouncement requirement “by simply saying that it is
imposing the ‘standard’ conditions.” Matthews, 54 F.4th at 6 n.2.12
Other circuits have said that a district court may incorporate the
standard conditions by reference to a specific document such as the
PSR, the guidelines, or a standing order.13 And still other circuits
allow the incorporation by reference only if the document listing the
conditions was “provided to the defendant in advance of the
hearing.” Montoya, 82 F.4th at 652.14 The majority opinion allows a
sentencing.”) (citing Sepulveda-Contreras, 466 F.3d at 169-70); United States v.
Santiago, 769 F.3d 1, 10 (1st Cir. 2014) (“The government concedes that
because condition thirteen was a non-mandatory, non-standard condition,
Santiago is not presumed to have been on constructive notice of the
condition.”) (citing Sepulveda-Contreras, 466 F.3d at 169-70).
12 See also United States v. Martinez, 15 F.4th 1179, 1181 (5th Cir. 2021)
(“Because the court told Martinez it was imposing ‘standard conditions,’ he
had notice and an opportunity to object (or, at a minimum, to ask for more
specificity about the conditions).”).
13 See United States v. Rodriguez, 75 F.4th 1231, 1246 (11th Cir. 2023) (“A
district court may easily satisfy th[e] [pronouncement] requirement by
referencing a written list of supervised release conditions. For instance, the
court may orally adopt the conditions of supervised release recommended
in the defendant’s PSR or in a standing administrative order.”); Rogers, 961
F.3d at 299 (“[A] district court may satisfy its obligation to orally pronounce
discretionary conditions through incorporation—by incorporating, for
instance, all Guidelines ‘standard’ conditions when it pronounces a
supervised-release sentence, and then detailing those conditions in the
written judgment.”).
14 See also Hayden, 102 F.4th at 372 (“[D]efendants’ due-process rights are
satisfied when the sentencing court incorporates the standard conditions by
reference to language contained in a publicly available districtwide order,

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18
district court to incorporate the conditions by reference to “the PSR,
the Guidelines, or a notice adopted by the court,” but only if the
document has been “made available to the defendant”—whatever
that means. Ante at 18.
Some circuits have approved the incorporation by reference to
“a court-wide standing order that lists certain conditions of
supervised release.” Rogers, 961 F.3d at 299.15 The majority opinion
does not mention standing orders but allows incorporation by
reference to a “notice adopted by the court”—again, whatever that
means. Ante at 18.
And does the new pronouncement requirement mean that a
district court must not only pronounce that it is imposing the
standard conditions but also provide reasons for doing so? Some
an individual defendant’s presentence investigation report, or other
document provided to the defendant before sentencing.”) (emphasis added).
15 See also Hayden, 102 F.4th at 374; Montoya, 82 F.4th at 652; Rodriguez,
75 F.4th at 1246; Diggles, 957 F.3d at 561. Other circuits have not specifically
addressed the question. See, e.g., Geddes, 71 F.4th at 1215; Matthews, 54 F.4th
at 6 n.2.

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19
circuits appear to say yes. 16 Others say definitely not. 17 And still
others have yet to provide an answer.18 In today’s decision, our court
emphasizes that only the mandatory conditions are “‘necessary’ to
effect the purpose of supervised release.” Ante at 15. The standard
conditions, by contrast, are discretionary and “their imposition is, by
definition, optional.” Id. That statement calls into question our
precedents holding that because the standard conditions are
“necessary to the administration of supervised release,” those
16 See Diggles, 957 F.3d at 558 (“Tying the pronouncement requirement to
section 3583(d)’s dividing line produces another benefit: it will mirror the
statutory requirement for when a court must justify the conditions it
imposes (what courts call the ‘articulation’ requirement).”); Matthews,
54 F.4th at 6 (“[N]o matter how commonsensical the standard conditions
may seem, the governing statute classifies them as discretionary, as does
the policy statement itself. And courts may impose discretionary conditions
only after making an individualized assessment of whether they are
‘reasonably related’ to normal sentencing factors and whether they involve
‘no greater deprivation of liberty than is reasonably necessary’ under the
circumstances.”) (citations omitted).
17 See Hayden, 102 F.4th at 372 (“[D]efendants’ due-process rights are
satisfied when the sentencing court incorporates the standard conditions by
reference …. But for special discretionary conditions not previously made
available to a defendant, a district court must always orally pronounce
them and explain its basis for imposing them, provided that its reasoning
is not readily apparent from the record.”); Geddes, 71 F.4th at 1213 (“[T]his
circuit does not require courts to make specific findings before imposing
standard conditions.”).
18 See Rodriguez, 75 F.4th at 1250 n.10 (“Rodriguez further argues that the
district court erred by failing to explain why the supervised release
conditions it imposed were justified in light of the statutory sentencing
factors and his individual circumstances. Because we conclude that
Rodriguez was denied due process with respect to these conditions and
remand for resentencing, we do not address his argument that the district
court failed to adequately explain them.”).

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20
conditions are “presumed suitable in all cases” and not “contingent
on whether certain circumstances are present.” Sims, 92 F.4th at
119 n.1 (internal quotation marks omitted). So perhaps it is now an
open question in the Second Circuit whether each of the standard
conditions requires a case-by-case justification because those
conditions are “optional” rather than “necessary.”
Years before Truscello, our court held that a general reference to
“the standard conditions that have been adopted by this court” was
sufficient to impose the standard conditions. Smith, 982 F.2d at 759.19
The majority opinion could have overruled Truscello and returned to
that simple rule of oral pronouncement, which would have aligned
our case law with other circuits in the purported national consensus.
But the majority has instead introduced destabilizing uncertainties.
II
The majority opinion claims that Truscello has “created
confusion in the trial courts regarding when and how discretionary
conditions of supervised release must be pronounced.” Ante at 15 n.9.
That is wrong again. Truscello has provided a clear rule for twenty-six
years. Upending the longstanding rule will create confusion.
A
The majority cites United States v. Thomas for the proposition
that there are “problems presented by Truscello.” Id. (quoting 299 F.3d
at 156). But Thomas illustrates how Truscello has settled expectations
with respect to the standard conditions. The defendant in Thomas did
19 See Truscello, 168 F.3d at 63 (“[W]e previously have concluded that, at
oral sentencing, even the most general allusion to the ‘standard conditions’
of supervised release is a sufficient basis on which to predicate the
imposition of each of the conditions normally regarded as standard.”).

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21
not bother to “challenge the mandatory or standard conditions,
conceding that, under Truscello, ‘the imposition of a term of
supervised release may include by implication the “standard” or
mandatory conditions of supervision.’” 299 F.3d at 153 (alteration
omitted) (quoting the defendant’s brief).20
That concession made sense. In the twenty-six years since
Truscello, we have repeatedly reaffirmed the straightforward default
rule it established with respect to the standard conditions.21 Far from
20 See also United States v. Williams, No. 23-6458, 2024 WL 5113144, at *3 n.4
(2d Cir. Dec. 16, 2024) (“[A]lthough [the defendant] argues that the district
court erred in imposing the standard conditions of supervised release that
were not orally pronounced at sentencing, he concedes that this argument
is precluded by our decision in United States v. Truscello.”).
21 See, e.g., United States v. Genao, No. 23-6710, 2024 WL 4404042, at *2
(2d Cir. Oct. 4, 2024) (identifying “the standard conditions in § 5D1.3(c),
which the district court need not orally pronounce”); United States v.
Whitaker, No. 21-1543, 2023 WL 5499363, at *3 (2d Cir. Aug. 25, 2023) (“Such
routinely-imposed conditions that provide essential details for compliance
need not be orally imposed because, we have explained, they are implicit
in the very nature of supervised release.”) (internal quotation marks and
alterations omitted); United States v. Singh, 726 F. App’x 845, 849 (2d Cir.
2018) (“A district judge, however, is not required to pronounce standard
conditions of supervised release orally at sentencing. Standard conditions
are basic administrative requirements essential to the functioning of the
supervised release system, and the district court does not deprive a
defendant of his right to be present at sentencing by failing to reference
explicitly each and every standard condition of supervision.”) (internal
quotation marks, alteration, and citation omitted); United States v. Handakas,
329 F.3d 115, 117 (2d Cir. 2003) (“[W]e permitted the later inclusion of
conditions listed as ‘mandatory’ or ‘standard’ in subsections 5D1.3(a)
and (c) of the Sentencing Guidelines.”) (alteration omitted); Jacques,
321 F.3d at 263 (“In the supervised release context we have held that the
mandatory and standard Guidelines conditions are basic administrative
requirements, generally imposed by sentencing courts, and plainly

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22
treating that rule as an outlier in our case law, we have extended it to
certain special conditions, see Asuncion-Pimental, 290 F.3d at 94, and to
conditions of probation, see Jacques, 321 F.3d at 265-66. Today’s
decision overrules those precedents as well, which means there is a
large body of precedent we are throwing out. If the extensions of
Truscello created line-drawing problems, we could have proceeded
more deliberately with respect to those cases. But there is no difficulty
in identifying the standard conditions. Those conditions are listed in
§ 5D1.3(c), a written document with which every competent defense
attorney is familiar. See Johnson, 313 F.3d at 818.
This case illustrates the clarity of the Truscello rule. At
Maiorana’s sentencing, the district court announced that it would
impose a term of supervised release. That put Maiorana on notice that
the mandatory and standard conditions would presumptively apply.
The district court eliminated any possible doubt when, after imposing
the special conditions recommended in the PSR, the district court
stated that it would impose “general conditions of supervised release
as well, which will be part and parcel of the judgment.” App’x 106.
The majority opinion indulges the pretense that Maiorana had
“no indication of what the ‘general conditions’ would be” and could
not possibly have known that the standard conditions would apply
to his supervised release. Ante at 5. In at least some of the circuits that
the majority opinion purports to follow, the pronouncement in this
case would have been sufficient because it provided “notice and an
appropriate to implement supervised release, and, therefore, need not be
mentioned orally at sentencing.”); Thomas, 299 F.3d at 153 (“In Truscello we
held that a written judgment does not conflict with an oral sentence where
a district court fails to specify conditions of supervised release orally, but
nevertheless includes in the written judgment conditions listed as
mandatory or standard in U.S.S.G. § 5D1.3(a) or (c).”).

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23
opportunity to object (or, at a minimum, to ask for more specificity
about the conditions).” Martinez, 15 F.4th at 1181. A pronouncement
that allowed the defendant “to either object … or to ask the district
court to clarify which conditions it imposed upon him” would suffice
in those circuits. Hayden, 102 F.4th at 374. In this case, Maiorana did
not seek clarification because he understood what the district court
meant. But in our circuit we are nevertheless still litigating the
question of whether the phrase “general conditions” might have
referred to the “standard conditions” that are typically applied.22 The
Truscello rule would avoid this make-believe debate.
B
Unsettling our precedent in this area invites litigation over
other questions. We know that “[a] district court is required to make
an individualized assessment when determining whether to impose
a special condition of supervised release, and to state on the record
the reason for imposing it; the failure to do so is error.” United States
v. Betts, 886 F.3d 198, 202 (2d Cir. 2018). We have not required such an
assessment for “the ‘standard’ conditions provided in § 5D1.3(c)”
because those conditions “are presumed suitable in all cases.”
Asuncion-Pimental, 290 F.3d at 94. According to the majority opinion,
however, we cannot treat the standard and special conditions
differently; the relevant distinction is between mandatory and
discretionary conditions—and all discretionary conditions are, “by
definition, optional.” Ante at 15. So must a district court provide an
individualized assessment for the standard conditions? The
22 I think it did. Compare General, Merriam-Webster Dictionary (2025)
(“applicable to or characteristic of the majority of individuals involved”),
with Standard, Merriam-Webster Dictionary (2025) (“regularly and widely
used, available, or supplied”).

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24
purported national consensus we have joined does not supply an
answer. And what does it mean that the district court may “reference
particular conditions that have been set forth in writing and made
available to the defendant”? Id. at 18 (emphasis added). Stay tuned.
If a district court fails to pronounce the standard conditions in
the way that the majority opinion requires—whatever that is—our
court will remand for another pronouncement. Because the standard
conditions are almost always appropriate, the remand will do nothing
but impose costs except in the rare case in which special
circumstances require the district court to provide an extra
justification for a standard condition. Under the Truscello rule,
however, we already remand in such cases. 23 So today’s decision
essentially retains the status quo ante in those cases in which a remand
would be justified while imposing an unnecessary magic-words
requirement on district courts that will result in additional useless
remands.
The majority opinion preemptively declares that the new rule
“does not apply retroactively on collateral review.” Ante at 18 n.11.
But for cases currently on appeal, “[t]he result may be many
comparable remands in other cases, each of which will require an in-
23 In Bryant, for example, the court considered a challenge to the standard
condition prohibiting a defendant from communicating with convicted
felons. 976 F.3d at 172. The court recognized that “a district court need not
explain its reasoning when imposing standard conditions.” Id. at 183-84
(citing Truscello, 168 F.3d at 63). But “because th[e] condition as applied to
[the defendant] implicate[d] a protected familial relationship,” we held that
“a more thorough justification [was] required.” Id. at 184. We “remand[ed]
to allow the district court to provide further justification for th[e] condition
as applied to [the defendant’s] immediate family members or to exempt
such communications and interactions from the restriction.” Id.

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25
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.” Montoya, 82 F.4th at 664 (Collins, J., dissenting).
In a tacit admission that there is no need for any of this, the
majority opinion emphasizes that while “Maiorana has a right to a
hearing,” he “may elect to waive it.” Ante at 20 n.14. And it
emphasizes again that “Maiorana may elect not to demand a hearing
regarding those conditions and insist on their pronouncement in his
presence.” Id. (emphasis in original). In other words, “[d]espite the
core constitutional rights at stake,” id. at 15, the majority opinion goes
out of its way to provide assurance to defendants and courts that the
new procedure it has invented will not always need to be followed.
There was an easier way to obtain that result. The Supreme
Court has said that “appellate courts retain broad discretion in
determining whether a remand for resentencing is necessary.”
Molina-Martinez v. United States, 578 U.S. 189, 204 (2016). We have
previously exercised that discretion to say that we will not remand
for the district court simply to say something “already apparent in the
record.” United States v. Ortiz, 100 F.4th 112, 121 (2d Cir. 2024). And
we did not confer on a defendant the right to insist on a remand for
“the utterance of robotic incantations” or other “formulaic or
ritualized burdens.” Id. (internal quotation marks omitted). We
should have adhered to those precedents and affirmed the judgment
in this case.

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26
* * *
I would not discard our longstanding precedent in favor of a
new burdensome ritual for district courts to perform. No law requires
that. I dissent.

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