United States of America v. Keith Matthews, Also Known As Bang, Also Known As Bain, Also Known As Bane

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued August 25, 2022 Decided September 6, 2022
No. 22-3021
UNITED S TATES OF A MERICA,
APPELLEE
v.
KEITH M ATTHEWS, ALSO KNOWN AS B ANG, ALSO KNOWN AS
B AIN, ALSO KNOWN AS B ANE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cr-00203-6)
Celia Goetzl, Assistant Federal Public Defender, argued
the cause for appellant. With her on the appellant’s
Memorandum of Law and Fact was A.J. Kramer, Federal
Public Defender.
Daniel J. Lenerz, Assistant U.S. Attorney, argued the
cause for appellee. With him on the appellee’s Memorandum
of Law and Fact were Chrisellen R. Kolb, Elizabeth H.
Danello, and George P. Eliopoulos, Assistant U.S. Attorneys.
Before: W ILKINS , KATSAS , and R AO , Circuit Judges.

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Opinion for the Court filed by Circuit Judge KATSAS .
KATSAS , Circuit Judge: After Keith Matthews violated his
supervised release conditions, the district court placed him in
home detention and later imposed a revocation sentence of
imprisonment and a new term of supervised release. Matthews
contends that the court lacked authority to impose both home
detention and imprisonment for the same violations, but he
waived this argument below. Matthews also contends that the
court’s written judgment improperly contains various
discretionary conditions of supervised release that were not
orally pronounced at sentencing. We agree.
I
Matthews was convicted of unlawfully possessing a
firearm as a felon. The district court sentenced him to
imprisonment followed by a term of supervised release. As
conditions for his release, the court prohibited Matthews from
using illegal drugs and required him to undergo drug testing.
Soon after his release, Matthews failed three drug tests and
skipped several more.
At a revocation hearing in November 2021, Matthews
conceded the accuracy of the failed tests. He denied missing
any other tests and sought information about them from the
Probation Office. Based on Matthews’s admitted drug use, the
district court proposed putting him in home detention
temporarily, while the parties tried to resolve their dispute
about the number of missed tests. The court further stated that
it would sentence Matthews only later, after determining the
full extent of his violations. The court asked whether
proceeding in this way was acceptable to the defense.
Matthews’s counsel answered that it was. The parties
eventually stipulated that Matthews had failed three drug tests
and skipped others scheduled over the course of two months.

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At sentencing, Matthews changed his tune. He argued that
because the district court had already imposed home detention
for violating release conditions, it could not impose a term of
imprisonment for the same violations. The court disagreed. It
orally sentenced Matthews to four months of imprisonment
followed by 32 months of supervised release. The court stated
that the supervised release would include drug testing but
specified no other conditions. In contrast, the court’s written
judgment imposed 21 conditions of supervised release—four
specifically required by statute, 13 recommended in a
Sentencing Commission policy statement, one about drug
testing, and three others.
II
Matthews first contends that the district court erred by
revoking supervised release and imprisoning him after it had
already imposed home confinement. His argument turns on 18
U.S.C. § 3583(e), which governs the modification or
revocation of supervised release. As relevant here, section
3583(e) gives a district court three options for responding to a
violation of release conditions. First, the court may “modify”
the conditions that it previously imposed. Id. § 3583(e)(2).
Second, the court may “revoke” the term of supervised release
and require the defendant to “serve in prison” all or part of that
term, subject to statutory maxima depending on the seriousness
of the underlying offense. Id. § 3583(e)(3). Third, the court
may order the defendant “to remain at his place of residence
during nonworking hours,” but “only as an alternative to
incarceration.” Id. § 3583(e)(4). Matthews contends that
section 3583(e)(4) requires the district court to make a unitary
choice between incarceration and home detention: The court
may impose a term of incarceration or a term of home
detention, but not both. The government reads section
3583(e)(4) differently. On its view, the statute simply prohibits

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the combined term of any imprisonment and any home
detention from exceeding the maximum term of imprisonment
authorized by section 3583(e)(3). Here, it concludes, the
district court’s orders were lawful because Matthews received
only seven months of home detention followed by four months
of imprisonment—far less than the maximum authorized
revocation sentence of two years.
We need not decide who is correct, because Matthews
waived below the argument that he seeks to press here. At the
November 2021 hearing, the district court made crystal clear
its intent to impose home detention only “temporarily,” as a
“stop-gap measure” while the parties tried to reach agreement
on how many drug tests Matthews had missed. J.A. 98–99.
Likewise, the court twice made clear that it would “sentence”
Matthews only later, after resolving that question. J.A. 99–100.
And Matthews’s acknowledged drug use required some term of
imprisonment, regardless of whether he had skipped any tests.
18 U.S.C. § 3583(g)(1). The Probation Office made this point
in its motion to revoke Matthews’s supervised release. And the
district court, more than a month before the November 2021
hearing, ordered defense counsel to “[m]ake sure [Matthews]
understands” that his drug use would require “a mandatory
prison sentence.” J.A. 79. At the November 2021 hearing,
after proposing to impose home detention and then a later final
sentence, the district court asked point-blank whether
proceeding in this way was “acceptable to the defense.” J.A.
100. Matthews’s counsel answered succinctly: “Yes. Thank
you.” Id. Having agreed to this structured proceeding of home
detention followed by a revocation sentence that had to include
some term of imprisonment, Matthews cannot now complain

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that the district court gave him exactly that. See United States
v. Olano, 507 U.S. 725, 732–33 (1993).1
III
The supervised release statute draws a basic distinction
between mandatory and discretionary conditions. It
enumerates certain mandatory conditions that a district court
“shall” order, such as not committing any further crimes and
not unlawfully possessing a controlled substance. 18 U.S.C.
§ 3583(d). Then, it provides that a district court “may” order
any other condition that is reasonably related to several of the
sentencing factors in section 3553(a), involves no greater
deprivation of liberty than reasonably necessary, and is
consistent with any pertinent Sentencing Commission policy
statements. Id. § 3583(d)(1)–(3). Matthews contends that all
such discretionary conditions must be orally pronounced at the
defendant’s sentencing. We agree.
Criminal defendants have a right to be physically present
at sentencing, which is grounded in the Fifth Amendment and
codified in Federal Rule of Criminal Procedure 43(a)(3). See
1 Matthews alternatively contends that even if a district court
may impose some combination of home detention and imprisonment
for the same violation of release conditions, section 3583 and the
Double Jeopardy Clause required the court do so contemporaneously
rather than in sequence. As the recitation above shows, this claim
too falls squarely within the scope of Matthews’s waiver.
Accordingly, we need not consider whether the home detention
imposed here is better classified as a modification of the original
release conditions under section 3583(e)(2), as the government
contends, or as itself a revocation sentence under section 3583(e)(3),
as Matthews contends. Likewise, we need not consider whether the
answer to that question would have affected the district court’s
ability to proceed sequentially rather than all-at-once.

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United States v. Gagnon, 470 U.S. 522, 526 (1985) (per
curiam); United States v. Love, 593 F.3d 1, 9 (D.C. Cir. 2010).
A district court must therefore orally pronounce any sentence
within the defendant’s presence. This oral pronouncement
“constitutes the judgment of the court,” Gilliam v. United
States, 269 F.2d 770, 772 (D.C. Cir. 1959), and a later written
judgment “is a nullity to the extent it conflicts” with the oral
one, United States v. Booker, 436 F.3d 238, 245 (D.C. Cir.
2006). When the written and oral judgments conflict, we
remand with instructions to conform the written judgment to
the oral one. Love, 593 F.3d at 9.
The written judgment in this case contains 21 conditions
of supervised release. One of them—that Matthews undergo
drug testing—was orally pronounced. Four of them are
mandatory conditions specifically required by section 3583(d).
The parties agree that a district court need not orally pronounce
such mandatory conditions, which follow from the imposition
of supervised release as a matter of law. See, e.g., United States
v. Rogers, 961 F.3d 291, 296–97 (4th Cir. 2020); United States
v. Anstice, 930 F.3d 907, 909 (7th Cir. 2019). The other 16
conditions are discretionary ones that were not orally
pronounced at Matthews’s sentencing. The government offers
three arguments why they were nonetheless lawfully imposed.
First, the government contends that when a district court
imposes supervised release as part of a revocation sentence, it
need not re-pronounce conditions already pronounced and
imposed as part of the original sentence, as were most of the
disputed conditions here. But the original term of supervised
release is distinct from any subsequent term imposed after
revocation. A revocation sentence arises when the district
court chooses to “revoke a term of supervised release” and
thereby sentence the defendant to additional time “in prison.”
18 U.S.C. § 3583(e)(3). Moreover, “[w]hen a term of

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supervised release is revoked … the court may include a
requirement that the defendant be placed on a term of
supervised release after imprisonment.” Id. § 3583(h)
(emphasis added). These provisions make clear that the
original supervised release term does not survive its own
revocation. And the district court, to impose a second
supervised release term as part of the revocation sentence, must
make a discretionary judgment that the circumstances warrant
it. Yet circumstances may have changed from when the
original sentence was imposed. For these reasons, the court
must consider and pronounce any discretionary conditions
anew, after giving the defendant an opportunity to contest
whether they remain appropriate. See United States v. Porter,
43 F.4th 467, 472 (5th Cir. 2022); Rogers, 961 F.3d at 294.
Second, the government argues that district courts never
have to pronounce the “standard conditions” that are
“recommended” in all cases by a Sentencing Commission
policy statement, U.S.S.G. § 5D1.3(c). These conditions
include requirements to report to the relevant probation office,
take directions from the assigned probation officer, and answer
his questions truthfully. See id. § 5D1.3(c)(1)–(2), (4). Two
courts of appeals have held that these standard conditions need
not be orally pronounced because they are “implicit in an oral
sentence imposing supervised release.” United States v.
Napier, 463 F.3d 1040, 1043 (9th Cir. 2006); United States v.
Truscello, 168 F.3d 61, 62–63 (2d Cir. 1999). Moreover, these
courts reason, the standard conditions form the administrative
backbone of supervised release, and so they are “almost
uniformly imposed.” Truscello, 168 F.3d at 63.
We respectfully disagree. For one thing, no matter how
commonsensical the standard conditions may seem, the
governing statute classifies them as discretionary, as does the
policy statement itself. See 18 U.S.C. § 3583(d); U.S.S.G.

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§ 5D1.3(c). And courts may impose discretionary conditions
only after making an individualized assessment of whether they
are “reasonably related” to normal sentencing factors, 18
U.S.C. § 3583(d)(1), and whether they involve “no greater
deprivation of liberty than is reasonably necessary” under the
circumstances, id. § 3583(d)(2). Moreover, even the most
pedestrian of the conditions contains a level of detail that
cannot plausibly be characterized as implicit in supervised
release itself—for example, the requirement to report to the
probation office within 72 hours of release rather than, say,
within 48 hours or 96 hours. U.S.S.G. § 5D1.3(c)(1). And
some of the standard conditions are quite intrusive—for
example, the requirements to live somewhere approved by the
probation officer, id. § 5D1.3(c)(5), and to work full time
unless excused by the probation officer, id. § 5D1.3(c)(7). For
these reasons, the standard conditions cannot be treated as
legally or practically compelled by the imposition of any term
of supervised release. Instead, as three other circuits have held,
the district court must consider whether they are warranted in
the circumstances of each case, must allow the defendant an
opportunity to contest them, and must orally pronounce them
at sentencing. Rogers, 961 F.3d at 297–98; United States v.
Diggles, 957 F.3d 551, 558–59 (5th Cir. 2020) (en banc)
(unanimous); Anstice, 930 F.3d at 910.2
2 We do not suggest that the district court must orally pronounce
all discretionary conditions word-for-word; conditions written out in
advance of sentencing may be orally incorporated by reference. For
example, a district court may satisfy the pronouncement requirement
by referencing and adopting the conditions recommended in a
presentence report or by simply saying that it is imposing the
“standard” conditions. See United States v. Martinez, 15 F.4th 1179,
1181 (5th Cir. 2021); Diggles, 957 F.3d at 560–62.

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Third, the government contends that Matthews invited
error by asking the district court to impose non-standard,
discretionary conditions that he receive treatment for substance
abuse and mental health. But the government takes Matthews’s
statements out of context: He requested continued treatment as
an alternative to revocation and imprisonment. He did not ask
for treatment requirements as a condition of supervised release
following a revocation sentence of imprisonment, much less
for the imposition of such requirements without oral
pronouncement. Because Matthews did not induce the error
about which he now complains, there was no invited error.
United States v. Lawrence, 662 F.3d 551, 557 (D.C. Cir. 2011).
IV
We affirm Matthews’s term of imprisonment. Because the
written judgment contains discretionary release conditions that
were not orally pronounced at sentencing, we remand for the
district court to conform the written judgment to the orally
pronounced one (plus the unchallenged mandatory conditions).
See Love, 593 F.3d at 14. In so doing, we do not disturb the
district court’s independent authority to prospectively modify
Matthews’s release conditions under section 3583(e)(2).
So ordered.

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