United States v. Xavier Grogan

United States Court of Appeals
for the Fifth Circuit

No. 18-50433

United States of America,

Plaintiff—Appellee,

versus

Xavier Grogan,

Defendant—Appellant.

Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:17-CR-256

Before Smith, Clement, and Oldham, Circuit Judges.
Edith Brown Clement, Circuit Judge:
Xavier Grogan was arrested in Midland, Texas, with eleven grams of
methamphetamine and an empty pocket where a recently sold .22 caliber
revolver had been. Grogan—at 20 years old already well-acquainted with the
courts—pleaded guilty to aiding and abetting possession with intent to
distribute methamphetamine and unlawful possession of a firearm. The
district court sentenced Grogan to imprisonment and supervised release
within sentencing guidelines.
United States Court of Appeals
Fifth Circuit
FILED
October 2, 2020

Lyle W. Cayce
Clerk
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Grogan challenges three supervision conditions the district court
imposed for the duration of his supervised release. He says the district court
improperly expanded those conditions because the court’s written judgment
contains language the court did not pronounce at the sentencing hearing. The
Government counters that there is no conflict: the written judgment merely
set out in full the conditions that the court adopted at the hearing.
We delayed hearing this appeal pending en banc consideration of
United States v. Diggles, 957 F.3d 551 (5th Cir. 2020) (en banc). We said there
that a “sentencing court pronounces supervision conditions when it orally
adopts a document recommending those conditions.” Diggles, 957 F.3d at
563. So the only issue here is whether the court’s oral pronouncement of
truncated versions was such an adoption. We conclude that it was, and we
AFFIRM.
I.
The district court entered Grogan’s guilty plea in early 2018 and
scheduled sentencing for a few months later. Six weeks before the sentencing
hearing, the probation office gave the parties the Presentence Investigation
Report (PSR). Among the many findings and recommendations in the PSR
were three recommended conditions of supervised release:
The defendant shall participate in a substance abuse treatment
program and follow the rules and regulations of that program.
The program may include testing and examination during and
after program completion to determine if the defendant has
reverted to the use of drugs. The probation officer shall
supervise the participation in the program (provider, location,
modality, duration, intensity, etc.). During treatment, the
defendant shall abstain from the use of alcohol and any and all
intoxicants. The defendant shall pay the costs of such
treatment if financially able.
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The defendant shall submit his or her person, property, house,
residence, vehicle, papers, computers (as defined in 18 U.S.C.
§ 1030(e)(1)), other electronic communications or data storage
devices or media, or office, to a search conducted by a United
States probation officer. Failure to submit to a search may be
grounds for revocation of release. The defendant shall warn
any other occupants that the premises may be subject to
searches pursuant to this condition. The probation officer may
conduct a search under this condition only when reasonable
suspicion exists that the defendant has violated a condition of
supervision and that the areas to be searched contain evidence
of this violation. Any search shall be conducted at a reasonable
time and in a reasonable manner.
The defendant shall provide the probation officer with access
to any requested financial information and authorize the
release of any financial information. The probation officer may
share financial information with the U.S. Attorney’s Office.
To begin the sentencing hearing, the district court asked Grogan’s
attorney if he had received a copy of the PSR. He had. Grogan and his
attorney confirmed they had reviewed it together “multiple times.” Grogan
did not object to any portion of the PSR, asking instead for only for “a small
variance and downward departure” in his prison term. The court adopted
the PSR in full, imposed incarceration and supervised release, and then
imposed supervision conditions. In addition to the required conditions not at
issue here, the court imposed the following discretionary conditions:
Additionally, the defendant shall participate in a substance
abuse treatment program and follow the rules and regulations
of that program;
Shall submit to the search condition of the district; [and]
The defendant shall also provide the probation officer with
access to any requested financial information and authorize the
release of any financial information.
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Days later, the court entered its written judgment including the three
conditions from the PSR set out above, verbatim. Grogan timely appealed.
II.
A district court must orally pronounce a sentence. Diggles, 957 F.3d at
556–57 (citing United States v. Martinez, 250 F.3d 941, 942 (5th Cir. 2001)
(per curiam)). That requirement flows from the defendant’s due process
right to be present for sentencing. Id. at 557 (citing United States v. Gagnon,
470 U.S. 522, 526 (1985) (per curiam)). “Including a sentence in the written
judgment that the judge never mentioned when the defendant was in the
courtroom is ‘tantamount to sentencing the defendant in absentia.’” Id.
(quoting United States v. Weathers, 631 F.3d 560, 562 (D.C. Cir. 2011)); see
Fed. R. Crim. P. 43(a)(3) (“the defendant must be present at
sentencing”). So if the oral pronouncement and the written judgment
diverge, the oral pronouncement controls. Diggles, 957 F.3d at 557 (citing
United States v. Kindrick, 576 F.2d 675, 676–77, 677 n.1 (5th Cir. 1978)). In
that event, “any burdensome . . . restrictions added in the written judgment
must be removed.” United States v. Bigelow, 462 F.3d 378, 383 (5th Cir. 2006)
(quoting United States v. Rosario, 386 F.3d 166, 168 (2d Cir. 2004)).
But oral pronouncement does not mean that the sentencing court
must recite the conditions word-for-word. Diggles, 957 F.3d at 562. The
requirement is satisfied when the district court gives the defendant “notice
of the sentence and an opportunity to object.” Id. at 560. One way to do that
is to adopt “a written list of proposed conditions.” Id. Those conditions can
come from the PSR, “the centerpiece of sentencing.” Id. (citing Fed. R.
Crim. P. 32). Indeed, that practice works to the defendant’s benefit because
it “affords earlier notice than when a defendant hears conditions for the first
time when the judge announces them.” Id. at 561 (citing United States v.
Lewis, 823 F.3d 1075, 1082 (7th Cir. 2016)). Likewise, the court can provide
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notice through “oral adoption of courtwide or judge-specific standing orders
that list conditions.” Id. (citing United States v. Vega, 332 F.3d 849, 853 (5th
Cir. 2003)). Either way, the defendant has “advance notice of possible
conditions,” and “the in-court adoption of those conditions is when the
defendant can object.” Id.
III.
A.
We first establish our standard of review. When a defendant objects to
a condition of supervised release for the first time on appeal, the standard of
review depends on whether he had an opportunity to object before the district
court. See Diggles, 957 F.3d at 559–60. If he had that chance but failed to do
so, we review for plain error. Id. at 559; see Fed. R. Crim. P. 52(b). If he
did not have the opportunity, we review for abuse of discretion. United States
v. Rivas-Estrada, 906 F.3d 346, 348 (5th Cir. 2018); see Diggles, 957 F.3d at
559.
There is no doubt that Grogan had notice of the recommended
conditions and an opportunity to object. First, there was the PSR, which set
out the three conditions exactly as they appear in the judgment. Grogan had
the PSR six weeks before sentencing, and he reviewed it with his attorney
“multiple times.”
Second, there was the district court’s standing order.
1
There too, the
court listed all three of the conditions as they appear in the judgment, labeled
“Substance Abuse Treatment,” “Search,” and “Financial Requirements

1
United States District Court for the Western District of Texas, Conditions of
Supervision – Special Conditions, https://www.txwd.uscourts.gov/judges-information/
standing-orders/ (select “District Standing Orders,” then “Conditions of Supervision -
Special Conditions - Franklin Compliant.pdf”).
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and Restrictions.” The standing order gave Grogan advance notice of the
possible conditions just like the PSR. See Diggles, 957 F.3d at 561.
Third, there was the court’s review at the sentencing hearing itself.
Recall that Grogan did not object to any portion of the PSR, including the
recommended conditions. See id. at 560 (“When the defendant confirms
review of the PSR and sentencing goes forward, a court’s oral adoption of
PSR-recommended conditions gives the defendant an opportunity to
object.”) (citing United States v. Bloch, 825 F.3d 862, 872 (7th Cir. 2016)).
And there was still more. After imposing the conditions, the court
paused to emphasize their importance: “Keep in mind, the supervised
release part of your sentence is not a throwaway. . . . When you are released,
you still have to do what the court tells you to do. It is important to remember
that, because you’re going to be under the oversight of the court for some
time.” Even so, Grogan did not lodge an objection that “would have alerted
the district court of a possible need to make a more detailed recitation of the
discretionary conditions and justify them.” Id. (citing Puckett v. United States,
556 U.S. 129, 134 (2009)).
Since Grogan forfeited his objection, we will review for plain error. See
id. Accordingly, Grogan must “show an obvious error that impacted his
substantial rights and seriously affected the fairness, integrity, or reputation
of judicial proceedings.” Id. at 559 (citing Puckett, 556 U.S. at 135).
B.
We find no error, plain or otherwise. Grogan argues that the written
judgment imposes “a more burdensome requirement” than the oral
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pronouncement. United States v. Bigelow, 462 F.3d 378, 383 (5th Cir. 2006).
2

To make this point, he offers a straightforward comparison of the oral
pronouncement and the written judgment. To be sure, the district court did
not recite verbatim the full text of the conditions later set out in the judgment.
But we have not required sentencing courts to do so when their oral
pronouncements amount to an adoption of previously provided conditions.
In Diggles, the district court announced the conditions of release by
directing the parties to the pages of the PSR with the recommended
conditions, and then expressly adopting them. 957 F.3d at 555 (“Those are
no longer just a recommendation; those are the conditions and special
instructions that I have adopted.”). This court noted a few reasons why that
type of adoption-by-reference is not only permitted but may work to a
defendant’s benefit.
For one, early access means more opportunity to object. Grogan could
have objected before the hearing, when the court asked if he had any
objections to the PSR, when the court adopted the PSR, or when the court
pronounced the supervisory conditions. See id. at 561 & n.7. More, “word-
for-word recitation” of the lengthy conditions can make for “a ‘robotic
delivery’ that has all the impact of the laundry list of warnings read during
pharmaceutical ads.” Id. at 562 (quoting United States v. Cabello, 916 F.3d
543, 544–45 (5th Cir. 2019) (Higginbotham, J., concurring)). Untethered
from formulaic recitation, the court instead emphasized to Grogan the
importance of his compliance with the full extent of his sentence, including
the supervisory conditions.

2
Neither party elected to submit a letter addressing Diggles pursuant to Federal
Rule of Appellate Procedure 28(j).
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So although the court did not recite the conditions in full, its
shorthand reference was adoption all the same. The court recited the first
sentences of the substance abuse and financial disclosure conditions and
announced that Grogan would be bound by “the search condition of the
district.” Not only were those the only three recommended conditions in the
PSR, but they also corresponded to conditions in the court’s standing order.
See note 1, above. The court could have adopted the conditions by
referencing a page or paragraph number of the PSR or standing order. See
Diggles, 957 F.3d at 555, 560–61. Since the court could have adopted the
conditions by saying less than it did, we see no principled reason why it did
not do so by saying more—at least where there is no ambiguity.
IV.
In short, after giving Grogan notice of the proposed conditions in both
the PSR and the standing order, it was clear that the district court adopted
the full terms of those conditions orally at the sentencing hearing. Because
there is no disparity between the oral pronouncement and the written
judgment, we find no error. The judgment is AFFIRMED.
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