United States v. Loren Read
Citation118 F.4th 1317
Date Filed2024-10-03
Docket23-10271
Cited17 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10271
____________________
UNITED STATES OF AMERICA,
PlaintiďŹ-Appellee,
versus
LOREN DAVID READ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:21-cr-00082-WWB-GJK-1
____________________
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2 Opinion of the Court 23-10271
Before WILLIAM PRYOR, Chief Judge, and LUCK and ED CARNES, Cir-
cuit Judges.
WILLIAM PRYOR, Chief Judge:
This appeal requires us to decide whether an appeal waiver
bars a defendant from challenging the constitutionality of the oral
pronouncement of his sentence. Loren Read agreed to plead guilty
to attempting to entice a minor to engage in sexual activity. In his
plea agreement, Read waived his right to appeal his sentence with
three exceptions, including one exception for where the sentence
exceeds the statutory maximum. At sentencing, the district court
told Read that he must follow the standard discretionary conditions
of supervised release for the district court during his five-year term.
But the district court did not describe those conditions in detail.
Readâs written judgment included 13 conditions that matched both
the standard conditions under the Sentencing Guidelines and the
conditions listed on the criminal judgment form found on the dis-
trict website. Read argues that the oral pronouncement violated his
right to due process because it failed to describe the 13 conditions
in detail. We grant the governmentâs motion to dismiss based on
the appeal waiver.
I. BACKGROUND
A grand jury indicted Loren Read for attempting to entice a
minor to engage in sexual activity. See 18 U.S.C. § 2422(b). Read
had exchanged online messages with an undercover federal agent
posing as the father of nine- and eleven-year-old girls. After Read
expressed his desire to perform oral sex on the girls, he agreed to
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23-10271 Opinion of the Court 3
meet the undercover agent after the girls finished dance class one
evening. Read expressed excitement to see them in their leotards
and asked to shower with them. After he arrived for the meeting,
Read approached an undercover agent posing as the father and of-
fered him a bag of candy for the girls. Agents arrested Read and
found three condoms in his pocket.
Read agreed to plead guilty. In exchange, the government
agreed not to charge Read with any other known offenses and to
recommend that he receive downward adjustments to his offense
level for accepting responsibility under the Sentencing Guidelines.
Read also agreed to waive his âright to appeal [his] sentence on any
ground, including the ground that the [district court] erred in de-
termining the applicable guidelines range.â The waiver provided
three exceptions that would permit Read to appeal: his sentence
exceeded the guideline range that the district court determined,
âexceed[ed] the statutory maximum penalty,â or violated the
Eighth Amendment. If the government appealed, Read would be
released from the waiver.
At the change of plea hearing, the district court told Read
that a conviction under section 2422(b) required a minimum five-
year term of supervised release after imprisonment. Read stated
that he understood that he could be imprisoned if he violated the
âterms and conditions of that supervised release.â The district
court did not elaborate on those terms and conditions. The district
court discussed the details of the plea agreement with Read and
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4 Opinion of the Court 23-10271
asked him whether he understood that he âexpressly waive[d] the
right to appeal [his] sentence.â Read responded, âYes.â
The Probation Office prepared a presentence investigation
report, which did not recommend any specific conditions of super-
vised release. Nor did it mention standard discretionary or manda-
tory conditions of supervised release. But it provided notice that
Readâs background and offense may warrant the imposition of spe-
cial conditions.
The district court sentenced Read to 180 months of impris-
onment followed by five years of supervised release. Readâs guide-
line range was 210 months to 262 months of imprisonment fol-
lowed by a term of supervised release of five years to life. The dis-
trict court varied downward when it sentenced Read to 180
months. For the five years of supervised release, the district court
imposed seven special conditions that it described. And it imposed
âthe mandatory and standard conditions adopted by the Court in
the Middle District of Florida.â The district court did not describe
those conditions. When the district court asked if there were ob-
jections to the sentence or the way it was pronounced, Readâs at-
torney responded, âNo.â
The district courtâs written judgment contained 13 discre-
tionary âstandard conditionsâ of supervised release. Those 13 con-
ditions matched the standard conditions on the criminal judgment
form found on the website of the Middle District of Florida. See
Form AO 245B Judgment in a Criminal Case, U.S. DIST. CT. FOR THE
MIDDLE DIST. OF FLA., at 6, https://perma.cc/5PHV-Q76Q (last
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23-10271 Opinion of the Court 5
visited Oct. 2, 2024). The form was last revised more than two
years before the district court sentenced Read. The 13 conditions
also matched the standard conditions in the Sentencing Guidelines.
See United States Sentencing Guidelines Manual § 5B1.3(c) (Nov.
2023).
II. STANDARD OF REVIEW
We review de novo the scope of an appeal waiver. Rudolph v.
United States, 92 F.4th 1038, 1043 (11th Cir. 2024).
III. DISCUSSION
Read appeals the imposition of the discretionary âstandard
conditionsâ on the ground that the district court violated his right
to due process when it failed to describe each condition during its
oral pronouncement of his sentence. The government moves to
dismiss based on Readâs appeal waiver. Because Read waived his
right to appeal, we grant that motion.
A defendant may knowingly and voluntarily waive his right
to appeal his sentence. United States v. Bushert, 997 F.2d 1343, 1350
(11th Cir. 1993). A plea agreement that includes an appeal waiver
is like a contract between the government and the defendant. King
v. United States, 41 F.4th 1363, 1367 (11th Cir. 2022). Appeal waivers
bar not only âfrivolous claimsâ but also âdifficult and debatable le-
gal issues.â Id. (citation and internal quotation marks omitted). A
defendant who waives his right to appeal âgives up even the right
to appeal blatant error[] because the waiver would be nearly mean-
ingless if it included only those appeals that border on the frivo-
lous.â Id. (citation and internal quotation marks omitted).
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6 Opinion of the Court 23-10271
Although we carried the governmentâs motion with the ap-
peal and rule on it now, that practice âis not the best thing to do.â
United States v. Lewis, 928 F.3d 980, 985 (11th Cir. 2019). Carrying a
motion to dismiss based on an appeal waiver âdeprives the govern-
ment of the benefit that it has bargained for and obtained in the
plea agreement.â United States v. Buchanan, 131 F.3d 1005, 1008
(11th Cir. 1997). Requiring the government to file a brief even
though there is an appeal waiver also harms defendants generally
by devaluing a chip that they can use in negotiating a bargain with
the government. Id. âWhere the appeal is due to be dismissed,
sooner is better than later.â Id. at 1008â09.
As with contracts, we interpret appeal waivers âconsistent
with the partiesâ intent.â United States v. Hardman, 778 F.3d 896, 900
(11th Cir. 2014). We give the language of the agreement its âordi-
nary and natural meaning unless the parties indicate otherwise.â Id.
This objective standard avoids a âhyper-technical reading of the
written agreementâ and a ârigidly literal approach in the construc-
tion of the language.â Id. (citation and internal quotation marks
omitted).
Read makes two arguments. First, Read argues that the
waiver does not apply because he seeks only to correct the written
judgment to match the oral pronouncement. Second, Read argues,
in the alternative, that his appeal fits within the exception for an
appeal of a sentence that âexceeds the statutory maximum pen-
alty.â Both arguments fail.
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23-10271 Opinion of the Court 7
A. Read Appeals His Sentence.
Read argues that he does not appeal his sentence because he
seeks correction of the written judgment, which is not a sentence.
A defendant may seek to correct a written judgment when there is
a conflict between it and the oral pronouncement. E.g., United
States v. Bates, 213 F.3d 1336, 1340 (11th Cir. 2000) (remanding for
correction of written judgment that conflicted with oral pro-
nouncement). But Read seeks more than correction of the written
judgment.
Readâs appeal challenges the constitutionality of his sen-
tence. He argues that the district court violated his right to due pro-
cess when it imposed his sentence without describing the standard
conditions. The Due Process Clause of the Fifth Amendment re-
quires that a defendant receive notice of and an opportunity to ob-
ject to his sentence. United States v. Rodriguez, 75 F.4th 1231, 1247
(11th Cir. 2023). This requirement derives from the right to be pre-
sent at âcritical stage[s] of [criminal] proceedings,â including during
the imposition of sentence. United States v. Huff, 512 F.2d 66, 71 (5th
Cir. 1975); accord United States v. Jackson, 923 F.2d 1494, 1496 (11th
Cir. 1991). Readâs procedural challenge to the imposition of his sen-
tence is an appeal of his sentence, which falls within the scope of
his appeal waiver.
A district court must orally pronounce any discretionary
conditions of supervised release at sentencing. Rodriguez, 75 F.4th
at 1246. It satisfies this requirement when it orally âreferenc[es] a
written list of supervised release conditions,â such as from the
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8 Opinion of the Court 23-10271
presentence investigation report or in a âstanding administrative
order.â Id. The written judgment may explicate details of condi-
tions referenced during the oral pronouncement at sentencing if
those details are established elsewhere. See id. at 1249. When the
district court includes discretionary conditions in the written judg-
ment that it did not reference at the sentencing hearing, we vacate
the conditions and remand for resentencing. Id.
Concerns about due process arise when a sentence in the
written judgment conflicts with the oral pronouncement. Id. at
1247. A district court ordinarily âcannot add to the defendantâs sen-
tence in a written judgment entered after the sentencing hearingâ
because doing so would impose a sentence outside the defendantâs
presence. Id. at 1246â47. So the district court may correct a written
judgment that âunambiguously conflictsâ with the oral pronounce-
ment to mitigate any constitutional problem. See Bates, 213 F.3d at
1340; FED. R. CRIM. P. 36 (permitting correction of âclerical er-
ror[s]â in the written judgment).
Although Read contends that he seeks correction of the writ-
ten judgment, the power to correct the written judgment is limited
under Rule 36. See United States v. Portillo, 363 F.3d 1161, 1164â65
(11th Cir. 2004). That power does not permit âsubstantive altera-
tion to a criminal sentence.â Id. at 1164 (citation and internal quo-
tation marks omitted). Courts may determine only whether the
judgment contains âclerical mistakesâ: âminor, uncontroversial er-
rors.â Id. (citation and internal quotation marks omitted). If during
our review we determine there is a clerical error, we remand with
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23-10271 Opinion of the Court 9
instructions for the district court to correct the judgment. Bates, 213
F.3d at 1340.
Read does not seek correction of the written judgment be-
cause he does not argue that the written judgment conflicts with
the oral pronouncement at sentencing. As Read acknowledges, the
district court explained at sentencing that he must comply with
âthe mandatory and standard conditions adopted by the Court in
the Middle District of Floridaâ during his supervised release. And
in its written order, it explained those conditions in detail. So there
is no discrepancy between the oral pronouncement and the written
judgment. The latter only expounds the former.
Instead of seeking correction of the written judgment, Read
challenges the way the district court imposed his sentence. That is,
Read argues that the district court failed to describe each standard
condition that it imposed. Read argues that this omission âviolated
[his] due process rights to notice and an opportunity to be heard.â
He argues that the district court should have âexpressly incorpo-
rated or pronouncedâ each of the conditions at sentencing because
they are not contained in a âstanding administrative order.â
If Read sought correction of the judgment, we would re-
mand with instructions for the district court to amend the judg-
ment to match the oral pronouncement. See id. But there is no mis-
match between the written judgment and the oral pronounce-
ment; the written judgment only adds details to the oral pro-
nouncement. If we issued that mandate, Read would not get what
he wants: a mandate to amend the judgment to match the oral
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10 Opinion of the Court 23-10271
pronouncement would result in a judgment that Read is subject to
âthe mandatory and standard conditions adopted by the Court in
the Middle District of Florida.â
Read cites decisions from the Fourth and Seventh Circuits,
but both are inapposite. In United States v. Singletary, the Fourth
Circuit ruled that a waiver of the right to appeal âwhatever sen-
tence is imposedâ did not bar a challenge to two conditions con-
tained in the judgment that the district court did not mention at
sentencing. 984 F.3d 341, 343, 345 (4th Cir. 2021) (emphasis and in-
ternal quotation marks omitted). The defendantâs argument was
that the âconditions appearing for the first time in [the] written
judgment in fact have not been âimposed.ââ Id. at 345. And in United
States v. Harris, the Seventh Circuit ruled that a defendantâs waiver
of his right to appeal his sentence or the way it âwas determined or
imposedâ did not bar him from seeking correction of a discrepancy
between the pronouncement and judgment. 51 F.4th 705, 719â21
(7th Cir. 2022) (internal quotation marks omitted). The defendant
argued that the district court orally sentenced him to two years of
supervised release, but the judgment provided a term of five years.
Id. at 719. The Seventh Circuit ruled that the âunambiguous oral
pronouncementânot the written judgmentâis the defendantâs ac-
tual sentence,â and a challenge to a discrepancy between the two
does not challenge the actual sentence. Id. at 720 (citation and in-
ternal quotation marks omitted).
Readâs appeal, in contrast, mirrors one that the Fifth Circuit
concluded was waived by a plea agreement. In United States v.
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23-10271 Opinion of the Court 11
Higgins, the Fifth Circuit ruled that a written waiver, like Readâs,
barred an appeal in which the defendant, like Read, argued that the
judgment contained details about the conditions of his supervised
release that the district court failed to mention at sentencing. See
739 F.3d 733, 736â39 (5th Cir. 2014). The Fifth Circuit rejected the
defendantâs argument that, because only the oral pronouncement
is the sentence, he did not challenge his sentence. Id. at 737â38. It
explained that, although an unambiguous pronouncement con-
trols where there is conflict, that rule âdoes not speak to whether a
conflict between the two sentences constitutes an appeal of the sen-
tence for purposes of waiver.â Id. at 738. The Fifth Circuit con-
cluded that the defendant appealed his sentence. Id. at 739.
Because Read does not seek correction of the written judg-
ment, we need not and do not decide whether the written judg-
ment or the oral pronouncement is the sentence. The Fourth, Fifth,
and Seventh Circuits decided that question and reached different
conclusions. Compare Singletary, 984 F.3d at 345 (concluding that a
challenge to conditions contained in the judgment but not men-
tioned at sentencing did not challenge the sentence and instead
âmade the more elementary contentionâ that the conditions âwere
not part of [the defendantâs] sentence at allâ (citation and internal
quotation marks omitted)), and Harris, 51 F.4th at 720 (concluding
that the âoral pronouncement is the real sentenceâ), with Higgins,
739 F.3d at 737â38 (rejecting the argument that only the oral pro-
nouncement is the sentence). Read challenges the sufficiency of the
oral pronouncement of his sentence, which means that he chal-
lenges his sentence regardless of its form.
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12 Opinion of the Court 23-10271
B. Read Does Not Argue that His Sentence
Exceeds the Statutory Maximum.
Read argues alternatively that the exception to his appeal
waiver for a sentence that âexceeds the statutory maximum pen-
altyâ applies because the âwritten judgment imposed a penalty that
was not authorized by law.â But we disagree. Read does not argue
that the 13 conditions violate the statutory requirements for super-
vised release. See 18 U.S.C. § 3583(d); Higgins,739 F.3d at 739
(con-
cluding that a similar exception did not apply because the defend-
ant âput[] forth no argumentâ that the conditions âviolate[d] the[]
statutory limitations in a way that constitute[d] a punishment in
excess of the statutory maximumâ). Read argues instead that he did
not receive notice of or an opportunity to object to the details of
his standard conditions of supervised release. So the exception does
not apply.
IV. CONCLUSION
We grant the governmentâs motion to DISMISS Readâs ap-
peal.