United States v. Jesus Rodriguez
Citation75 F.4th 1231
Date Filed2023-08-01
Docket20-13534
Cited55 times
StatusPublished
Full Opinion (html_with_citations)
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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13534
____________________
UNITED STATES OF AMERICA,
PlaintiďŹ-Appellee,
versus
JESUS RODRIGUEZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20411-FAM-1
____________________
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2 Opinion of the Court 20-13534
Before WILLIAM PRYOR, Chief Judge, and JILL PRYOR and GRANT,
Circuit Judges.
JILL PRYOR, Circuit Judge:
Jesus Rodriguez appeals his sentence for possession with in-
tent to distribute 100 grams or more of heroin and 50 grams or
more of methamphetamine. There are four issues on appeal:
whether (1) the district court erred in imposing a two-level en-
hancement for maintaining a premises for the purpose of manufac-
turing or distributing a controlled substance, under § 2D1.1(b)(12)
of the Sentencing Guidelines, (2) Rodriguezâs sentence is procedur-
ally and substantively unreasonable, (3) technical malfunctions
during Rodriguezâs sentencing hearing conducted remotely via
videoconference violated his Sixth Amendment right to counsel at
a critical stage of criminal proceedings, and (4) the district court
erred by imposing conditions of supervised release in the written
judgment that were not orally pronounced at the sentencing hear-
ing. After careful review, and with the benefit of oral argument, we
affirm Rodriguezâs sentence in part, vacate in part, and remand for
limited resentencing as to the conditions of supervised release.
I. BACKGROUND
Rodriguez pled guilty to possession with intent to distribute
100 grams or more of a substance or mixture containing heroin and
50 grams or more of a substance or mixture containing metham-
phetamine, in violation of 21 U.S.C. § 841(a)(1). The mandatory
minimum term of imprisonment was five years, and the statutory
maximum was 40 years.
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20-13534 Opinion of the Court 3
Rodriguez stipulated in a factual proffer that the following
facts would have been proved at trial. Rodriguez manufactured
counterfeit pills and conducted drug trafficking activity at his
home. Law enforcement conducted multiple trash pulls at Rodri-
guezâs home and found in his trash supplement packaging with un-
known white powder, discarded pills, ventilator masks, and gloves.
Police executed a search warrant of Rodriguezâs home and arrested
him after they discovered him trying to flush counterfeit pills down
the toilet. In their search of Rodriguezâs home, police found 56
grams of a mixture and substance containing methamphetamine,
approximately 300 grams of a mixture and substance containing
heroin, a chemical mask, two scales, and $50,000 in cash.
Before sentencing, the United States Probation Office pre-
pared a presentence investigation report (âPSRâ) to help the district
court determine Rodriguezâs sentence. The PSR calculated a base
offense level of 26 based on the combined quantity of heroin and
methamphetamine found in his home. The PSR applied a two-level
enhancement under § 2D1.1(b)(12) of the Sentencing Guidelines
because Rodriguez had maintained a premises for the purpose of
manufacturing or distributing a controlled substance. It then ap-
plied a two-level reduction under § 2D1.1(b)(18) because Rodri-
guez met the safety-valve criteria set forth in § 5C1.2(a)(1)â(5). An-
other two-level reduction was applied under § 3E1.1(a) for Rodri-
guezâs acceptance of responsibility. Finally, the PSR subtracted one
point under § 3E1.1(b) because Rodriguez had timely notified the
government of his intention to plead guilty. Combined, the en-
hancement and the reductions yielded a total offense level of 23.
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4 Opinion of the Court 20-13534
The PSR noted that Rodriguez had two prior convictions,
neither of which resulted in any criminal history points under the
guidelines. In 1990, Rodriguez was charged with trafficking cocaine
and possession of cocaine. The trafficking charge was dropped; he
was found guilty on the possession charge and spent 23 days in jail.
In 1996, he was charged with conspiracy to commit kidnapping
with a weapon, carrying a concealed weapon, and possession of a
cloned cellphone. Each of these charges was dropped except for
possession of a cloned cellphone for which he spent four days in
jail. Based on a total offense level of 23 and a criminal history cate-
gory of I, the PSR calculated a recommended guideline range of 46
to 57 monthsâ imprisonment.
The PSR noted that the guideline range for a term of super-
vised release was at least two years but not more than five years.
The PSR also recommended three special conditions of supervised
release. The first condition was that Rodriguez submit to searches
of his person and property by the United States Probation Office.
The second was that upon completion of his term of imprison-
ment, Rodriguez be surrendered to the custody of Immigration
and Customs Enforcement for removal proceedings. The third
condition was that if Rodriguez have any unpaid restitution, fines,
or special assessments, he was required to notify his probation of-
ficer of any material change in his economic circumstances that
could affect his ability to pay. The PSR mentioned no other terms
or conditions of supervised release. It made no mention of a stand-
ing administrative order from the Southern District of Florida set-
ting forth supervised release conditions.
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20-13534 Opinion of the Court 5
Before sentencing, Rodriguez objected to portions of the
PSR and requested a downward variance. He objected to the
§ 2D1.1(b)(12) enhancement for maintaining a premises used for
drug manufacturing or distribution, arguing that neither he nor the
government had anticipated a premises enhancement, he did not
use his home to manufacture drugs, and the âprimary or principalâ
use of his family home was not the manufacture, delivery, or stor-
age of controlled substances. See U.S. Sentâg Guidelines Manual
§ 2D1.1 cmt. n.17 (U.S. Sentâg Commân 2018).
The sentencing hearing was conducted remotely using the
Zoom videoconferencing platform, with Rodriguez, defense coun-
sel, the prosecutor, and the district judge in different physical loca-
tions. At the beginning of the hearing, defense counsel indicated
that she was having difficulty hearing the court. The court pro-
posed halting the hearing and resuming in person, but defense
counsel did not respond to this suggestion.
After the sound issue was temporarily resolved, Rodriguezâs
counsel again objected to the premises enhancement. She argued
that manufacturing or distributing a controlled substance was not
a principal or primary use of his home because he and his family
had lived there for 15 years, whereas the drug activity had lasted
only six months. After stating the objection, defense counsel again
indicated that she could not hear the court. The court replied,
âSomething is happening to your Wi-Fi . . . because now not every
word is coming in . . . . I donât know what we should do.â Doc. 82
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6 Opinion of the Court 20-13534
at 12. 1 Defense counsel tried to answer, but her connection failed
again. The prosecutor then began to respond to defense counselâs
objection to the premises enhancement. While the prosecutor was
responding, the courtroom deputy told the court that defense
counsel had disconnected from the videoconference. The court
halted proceedings until she rejoined.
When the proceedings resumed, defense counsel further ar-
gued that the premises enhancement should not apply because law
enforcement had not recovered the pill press, a critical tool for drug
manufacturing, in their search of Rodriguezâs home. The court
asked whether there was any dispute concerning Rodriguezâs state-
ment in his factual proffer about manufacturing narcotics at his
home. Defense counsel continued to experience technical issues
and again disconnected from the meeting. The district court again
paused the proceedings until she reconnected.
After reconnecting, defense counsel agreed that Rodriguezâs
factual proffer stated that he manufactured the drugs. She ex-
plained that âa majority of the time, . . . the manufacturing was
being done at the co-conspiratorsâ housesâ but that Rodriguez had
manufactured drugs at his home âin the past.â Id. at 27. The district
court then asked Rodriguez directly how often he manufactured
drugs in his house. Rodriguez responded, âNever, never. No, I
never said when I was talking with the prosecutorâs office that I
manufactured drugs in my house.â Id. at 29.
1 âDoc.â numbers refer to the district courtâs docket entries.
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20-13534 Opinion of the Court 7
At this point, defense counsel stated that she had discon-
nected during the exchange between the court and Rodriguez and
had not heard what was said. The maximum amount of time that
defense counsel could have been disconnected amounted to ap-
proximately two transcript pages out of 52.
Based on Rodriguezâs denial that he had never manufac-
tured drugs at his house, the prosecutor then stated that the gov-
ernment would withdraw its § 5K1.1 motion and asked the district
court to remove the reduction for acceptance of responsibility. De-
fense counsel repeated that she had dropped from the meeting, and
the district court suggested that they postpone the virtual proceed-
ing and continue the hearing in person.
Again, defense counsel did not respond to the courtâs sug-
gestion to continue the hearing in person. Instead, she stated that
Rodriguez âput the stuff together[,] and he had items to manufac-
tureâ but the âpill press was always at other peopleâs houses.â Id. at
36. The prosecutor agreed with this characterization, stating âIâm
not saying the pill press was necessarily in the house; that the
depths of manufacturing as I understand them, sorting the materi-
als, getting the powders, examining them and storing pressed drugs
and distributing drugs, all occurred at the house.â Id. at 38. Rodri-
guez agreed with this description. The hearing proceeded without
any further technical issues.
The district court overruled Rodriguezâs objection to the
premises enhancement, finding that the use of his home was not
collateral or incidental. The court recognized that âif you only sell
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8 Opinion of the Court 20-13534
drugs one time in a house that is used for anything else, the en-
hancement is not appropriate.â Id. at 37. The court explained that
âeven though the home has been owned for 20 years, if itâs been
used with drugs, multiple drugs, itâs enough for the enhancement.â
Id. at 39â40. The district court adopted the guidelines range as cal-
culated in the PSR.
Rodriguez argued for a downward variance and 30-month
sentence because of his cooperation, age, extensive medical issues,
lack of substantial criminal history, and low likelihood of recidi-
vism. The district court stated that Rodriguezâs criminal history
category âunderstatedâ his past criminal conduct. Id. at 45. The
court reviewed his past convictions and explained that one of his
prior convictions had been reduced by a âvery busyâ state court
system, âbut it was a narcotics investigation.â Id. The court ex-
plained, â[S]ince I think [Rodriguez] actually probably should be in
Criminal History Category II, I could upward vary and find that the
guidelines are 51 to 63 months.â Id.
Based on Rodriguezâs two prior convictions, to which the
PSR assigned no criminal history points, the court explained that it
would impose a sentence of 60 months if there had been no coop-
eration. Using 60 months as a starting point, the court then reduced
the sentence by 10 months based on Rodriguezâs cooperation, for
a final sentence of 50 monthsâ imprisonment.
The court also imposed a five-year term of supervised re-
lease. The court did not detail the conditions of supervised release,
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20-13534 Opinion of the Court 9
stating only, âUpon release from imprisonment, youâll be placed
on supervised release, $100 special assessment, no fine.â Id. at 50.
After sentencing, the district court issued a written judg-
ment imposing 13 discretionary conditions of supervised release.
These conditions were taken from a 1988 administrative order in
the Southern District of Florida, which identifies the conditions
âhereby imposedâ whenever an individual is placed on supervised
release âunless altered or modified by special order.â See S.D. Fla.,
Administrative Order 1988-06, Standing Conditions of Probation and
Supervised Release (1988) (âAdministrative Order 1988-06â), https://
www.flsd.uscourts.gov/sites/flsd/files/adminorders/1988-06.pdf
[https://perma.cc/GYF2-AXVY].
Ten of the conditions closely tracked the standard condi-
tions contained in the Sentencing Guidelines. 2 See U.S. Sentâg
2 These conditions required that Rodriguez: not leave the judicial district with-
out the permission of the court or probation officer; report to the probation
officer and submit a truthful and complete written report within the first 15
days of each month; answer truthfully all inquiries by the probation officer and
follow the instructions of the probation officer; work regularly at a lawful oc-
cupation, unless excused; notify the probation officer at least 10 days prior to
any change in residence or employment; not associate with persons engaged
in criminal activity or with any persons convicted of a felony unless granted
permission; permit a probation officer to visit him at any time and permit con-
fiscation of contraband observed in plain view by the probation officer; notify
the probation officer within 72 hours of being arrested or questioned by a law
enforcement officer; not enter into any agreement to act as an informer or a
special agent of a law enforcement agency without the permission of the
court; and notify third parties of risks that may be occasioned by his criminal
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10 Opinion of the Court 20-13534
Guidelines Manual § 5D1.3(c)(1)â(13). The other three conditions
listed in the administrative order and imposed on Rodriguez were
not standard conditions under the Sentencing Guidelines. These
conditions required that the defendant (1) âsupport his or her de-
pendents and meet other family responsibilities,â (2) ânot frequent
places where controlled substances are illegally sold, used, distrib-
uted, or administered,â and (3) ârefrain from excessive use of alco-
holâ and ânot purchase, possess, use, distribute, or administer any
controlled substance.â Doc. 72 at 3.
Rodriguez appealed his sentence.
II. STANDARD OF REVIEW
âWe review de novo the interpretation of a sentencing guide-
line.â United States v. Warren, 820 F.3d 406, 407 (11th Cir. 2016).
âWhether a defendant maintained a premises for the manufacture
or distribution of drugs is a finding of fact that we review under the
clear-error standard.â United States v. George, 872 F.3d 1197, 1205
(11th Cir. 2017). âA factual finding is clearly erroneous when, upon
review of the evidence, we are left with a definite and firm convic-
tion a mistake has been made.â United States v. Dimitrovski, 782 F.3d
622, 628 (11th Cir. 2015).
âWe review the reasonableness of a sentence under an
abuse-of-discretion standard.â United States v. Melgen, 967 F.3d 1250,
record or personal history or characteristics and permit the probation officer
to make such notifications and to confirm the defendantâs compliance with
such notification requirements.
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20-13534 Opinion of the Court 11
1264 (11th Cir. 2020). âIn reviewing a sentence for reasonableness,
we first consider whether the district court committed any signifi-
cant procedural error, and next consider whether the sentence was
substantively reasonable.â Id. Significant procedural error includes
âfailing to calculate (or improperly calculating) the Guideline
range, treating the Guidelines as mandatory, failing to consider the
[18 U.S.C.] § 3553 factors, selecting a sentence based on clearly er-
roneous facts, or failing to adequately explain the chosen sen-
tence.â United States v. Delva, 922 F.3d 1228, 1255 (11th Cir. 2019)
(internal quotation marks omitted). 3
When a defendant fails to raise procedural unreasonableness
in the district court, we review for plain error. United States v. Sua-
rez, 893 F.3d 1330, 1336 (11th Cir. 2018). âAn appellate court may
not correct an error the defendant failed to raise in the district court
unless there is: (1) error, (2) that is plain, and (3) that affects sub-
stantial rights.â United States v. Rodriguez, 398 F.3d 1291, 1298 (11th
3 Under § 3553(a), the district court must impose a sentence âsufficient, but
not greater than necessary, to comply with the purposesâ of the statute.
18 U.S.C. § 3553(a). These purposes include the need to: reflect the seriousness
of the offense; promote respect for the law; provide just punishment; deter
criminal conduct; protect the public from the defendantâs future criminal con-
duct; and effectively provide the defendant with educational or vocational
training, medical care, or other correctional treatment. Id. § 3553(a)(2). The
court must also consider the nature and circumstances of the offense, the his-
tory and characteristics of the defendant, the kinds of sentences available, the
applicable guidelines range, the pertinent policy statements of the Sentencing
Commission, the need to avoid unwarranted sentencing disparities, and the
need to provide restitution to victims. Id. § 3553(a)(1), (3)â(7).
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12 Opinion of the Court 20-13534
Cir. 2005) (internal quotation marks omitted). âIf all three condi-
tions are met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.â Id.
â[W]here the explicit language of a statute or rule does not specifi-
cally resolve an issue, there can be no plain error where there is no
precedent from the Supreme Court or this Court directly resolving
it.â United States v. Corbett, 921 F.3d 1032, 1037 (11th Cir. 2019).
â[A]fter it has been determined that a sentence is procedur-
ally sound, we review the sentenceâs substantive reasonableness.â
United States v. Wayerski, 624 F.3d 1342, 1353 (11th Cir. 2010). âA
district court abuses its considerable discretion and imposes a sub-
stantively unreasonable sentence only when it (1) fails to afford
consideration to relevant factors that were due significant weight,
(2) gives significant weight to an improper or irrelevant factor, or
(3) commits a clear error of judgment in considering the proper
factors.â United States v. Rosales-Bruno, 789 F.3d 1249, 1256 (11th
Cir. 2015). âA district courtâs sentence need not be the most appro-
priate one, it need only be a reasonable one.â United States v. Whyte,
928 F.3d 1317, 1338 (11th Cir. 2019) (internal quotation marks omit-
ted). We do not apply a presumption of reasonableness to sen-
tences within the guideline range, but we ordinarily expect such a
sentence to be reasonable. United States v. Stanley, 739 F.3d 633, 656
(11th Cir. 2014). Likewise, â[a] sentence imposed well below the
statutory maximum penalty is an indicator of a reasonable sen-
tence.â Id.
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20-13534 Opinion of the Court 13
III. DISCUSSION
On appeal, Rodriguez raises four arguments. First, he argues
that the district court erred by imposing an enhancement for main-
taining a premises for the purpose of manufacturing or distributing
a controlled substance. Second, he contends his sentence was pro-
cedurally and substantively unreasonable. Third, he argues the
technical malfunctions during his sentencing hearing violated his
Sixth Amendment right to counsel. Fourth, he challenges the con-
ditions of his supervised release that were not orally pronounced at
his sentencing hearing. We address each argument in turn.
A. The District Court Properly Applied the Enhancement
for Maintaining a Premises for the Purpose of Manufac-
turing or Distributing a Controlled Substance.
Rodriguez argues that the district court erred by imposing
the § 2D1.1(b)(12) enhancement because the primary or principal
use of his residence was as a family home, and the use of his home
for drug activity was only collateral or incidental. He argues that
the district court incorrectly applied § 2D1.1(b)(12) by failing to
consider the totality of the circumstances and factually erred by
finding that the distribution of a controlled substance was a pri-
mary or principal use of his home. We disagree.
Section 2D1.1(b)(12) provides for a two-level enhancement
if a defendant âmaintained a premises for the purpose of manufac-
turing or distributing a controlled substance.â U.S. Sentâg Guide-
lines Manual § 2D1.1(b)(12). Manufacturing or distributing a con-
trolled substance need not be the sole purpose for which the
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14 Opinion of the Court 20-13534
residence was maintained, but it must be a âprimary or principal,â
rather than an âincidental or collateral,â use. Id. § 2D1.1 cmt. n.17.
In making this determination, courts consider how frequently the
premises were used for manufacturing or distributing drugs versus
for lawful purposes. Id. Courts should âview the totality of the cir-
cumstances to determine whether a defendant âmaintainedâ a
premises for drug distribution or manufacture.â George, 872 F.3d at
1205.
First, Rodriguez argues that the district court incorrectly ap-
plied § 2D1.1(b)(12) because it failed to look at the âtotality of the
circumstancesâ and instead focused exclusively on the presence of
drugs at his home. But the record shows that the district court con-
sidered that Rodriguez used his home for purposes unrelated to
drugs. The district court acknowledged that Rodriguez âused [his]
home for other things,â stating, âI know that you didnât manufac-
ture narcotics in your home for the 20 years.â Doc. 82 at 28â29.
The court explained that even if Rodriguez had conducted non-
drug-related activities at his residence, the enhancement would still
be appropriate if he engaged in a sufficient amount of drug-related
activity there. Because the district court did not in fact focus solely
on the presence of drugs at Rodriguezâs residence and considered
that he used his home for other purposes, the district court
properly considered the totality of the circumstances when deter-
mining whether Rodriguez maintained a premises for drug distri-
bution or manufacturing under § 2D1.1(b)(12).
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20-13534 Opinion of the Court 15
Second, Rodriguez argues that the district court erred in
finding that the manufacture or distribution of drugs was a primary
or principal use of Rodriguezâs home, rather than a collateral or
incidental one. Again, we disagree. The district court did not
clearly err when it found that one of the primary uses of Rodri-
guezâs house was for drug manufacturing and distribution.
Although Rodriguezâs residence was used as a family home,
âa premises can have more than one primary use, so long as the
drug activity is more than incidental or collateral.â George, 872 F.3d
at 1206 (internal quotation marks omitted); see also United States v.
Miller, 698 F.3d 699, 706 (8th Cir. 2012) (concluding that the prem-
ises enhancement applied âwhen the defendant use[d] the premises
for the purpose of substantial drug-trafficking activities, even if the
premises was also her family home at the times in questionâ). In
George, we affirmed the district courtâs application of the premises
enhancement where the government presented evidence of drug
activity at the defendantâs apartment. George, 872 F.3d at 1206. A
single witness had testified that the defendant purchased multiple
pounds of marijuana at his apartment on one occasion and that the
defendant had packaging equipment, scales, heat-sealing machines,
and firearms at the apartment. Id. Based on this evidence, we con-
cluded that the district court âdid not clearly err in determining that
the § 2D1.1(b)(12) increase was appropriate.â Id.
Here, the government presented evidence to show that the
drug activity at Rodriguezâs house was more than incidental or col-
lateral and was one of the primary uses of his house. Law
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16 Opinion of the Court 20-13534
enforcement officials conducted eight trash pulls outside of Rodri-
guezâs house and found âsupplement packaging with unknown
white powder, discarded pills, ventilator masks, and gloves.â Doc.
44 at 1. When law enforcement searched Rodriguezâs home, they
found him trying to flush pills down the toilet. They also found 56
grams of methamphetamine, approximately 300 grams of heroin,
approximately 10 grams of counterfeit pills containing metham-
phetamine, $50,000 in cash, a chemical mask, and two scales. And,
during the sentencing hearing, Rodriguez agreed that âsorting the
materials, getting the powders, examining them and storing
pressed drugs and distributing pressed drugs, all occurred at [his]
house.â Doc. 82 at 38. This evidence supports the district courtâs
finding that Rodriguez engaged in extensive drug activity at his
home; it was not a âcollateral or incidentalâ use of his residence.
Based on this evidence, the district court did not clearly err in ap-
plying the premises enhancement.
B. The District Court Did Not Impose a Sentence That
Was Procedurally or Substantively Unreasonable.
Rodriguez next argues that the sentence the district court
imposed was procedurally and substantively unreasonable. Rodri-
guez asserts that the district courtâs reliance on his uncounted crim-
inal history was procedurally unreasonable because the court failed
to adequately explain why his prior convictions warranted a sen-
tencing increase. He argues his sentence was substantively unrea-
sonable because his prior convictions did not justify an initial up-
ward variance to 60 months. We reject Rodriguezâs arguments.
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20-13534 Opinion of the Court 17
As an initial matter, Rodriguez âfailed to argue procedural
unreasonableness below, and so we review for plain error.â Suarez,
893 F.3d at 1336. A sentence is procedurally unreasonable if the dis-
trict court âfail[s] to adequately explain [its] chosen sentenceâin-
cluding an explanation for any deviation from the Guidelines
range.â Gall v. United States, 552 U.S. 38, 51 (2007). We have ex-
plained that a district court commits procedural error by failing âto
give any explanation of its reasons for imposing a sentenceâ or by
providing âno reasoning or indication of what facts justified . . . a
significant variance from the advisory Guidelines range.â United
States v. Livesay, 525 F.3d 1081, 1093 (11th Cir. 2008).
The district court committed no error, much less plain error,
because it adequately explained how it arrived at Rodriquezâs sen-
tence. The district court explained that it started at 60 months be-
cause of Rodriguezâs two prior convictions, which the PSR did not
take into account. The court then explained that it would grant a
10-month reduction because of Rodriguezâs cooperation. Moreo-
ver, the 50-month sentence was within the guideline range of 46 to
57 months as described in the PSR, and â[g]enerally, when sentenc-
ing within the advisory Guidelines range, the district court is not
required to give a lengthy explanation for its sentence.â Id. at 1090.
Thus, Rodriguez has failed to show that the district court plainly
erred.
Rodriguez also argues that his sentence was substantively
unreasonable. At his sentencing hearing, Rodriguez advocated for
a sentence of 30 monthsâ imprisonment. âA defendant who, by
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18 Opinion of the Court 20-13534
advocating for a particular sentence, communicates to the trial
judge his view that a longer sentence is âgreater than necessaryâ has
thereby informed the court of the legal error at issue in an appellate
challenge to the substantive reasonableness of the sentence.â Hol-
guin-Hernandez v. United States, 140 S. Ct. 762, 766â67 (2020). So, we
review the substantive reasonableness of Rodriguezâs sentence for
an abuse of discretion. See Rosales-Bruno, 789 F.3d at 1255. The
party challenging a sentence has the burden to show that it was
substantively unreasonable. Id. at 1256.
Rodriguez argues the district court abused its discretion by
initially varying his sentence upward to 60 months, which was
above the guideline range of 46 to 57 months. He contends that his
criminal history was âmodestâ and did not justify the upward vari-
ance. Brief for Appellant at 27. Although Rodriguezâs criminal his-
tory was limited, the district courtâs variance also was limited: three
months beyond the guideline range. â[T]he justification for the var-
iance must be sufficiently compelling to support the degree of the
variance.â United States v. Irey, 612 F.3d 1160, 1187 (11th Cir. 2010)
(en banc) (internal quotation marks omitted). We have âupheld
large upward deviations based solely on an offenderâs extensive
criminal history.â United States v. Osorio-Moreno, 814 F.3d 1282, 1288
(11th Cir. 2016). Rodriguezâs modest criminal history supported
the district courtâs modest upward variance.
Moreover, the district court did not stop with the upward
variance of 60 months. It then reduced Rodriguezâs sentence by 10
months because of Rodriguezâs cooperation, for a final sentence of
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20-13534 Opinion of the Court 19
50 monthsâ imprisonment, which was within the guideline range
of 46 to 57 months. We ordinarily expect that a sentence within the
guidelines is reasonable. Stanley, 739 F.3d at 656. Additionally, 50
months is significantly below the statutory maximum of 480
months, which provides another âindicator of reasonableness.â
United States v. Goldman, 953 F.3d 1213, 1222 (11th Cir. 2020). The
district court did not abuse its discretion by sentencing Rodriguez
to 50 monthsâ imprisonment.
C. Rodriguez Is Not Entitled to Resentencing Because of
the Videoconference Malfunctions.
Rodriguez next argues that he is entitled to resentencing be-
cause technical malfunctions prevented his counsel from being pre-
sent for the entire sentencing hearing. Rodriguez points to several
instances where hearing participants commented on defense coun-
selâs poor connection and one instance where the district court
questioned Rodriguez while his attorney was disconnected.
Rodriguez contends that because of these technical difficul-
ties he lacked representation during a critical phase of his criminal
proceedings in violation of his Sixth Amendment right to counsel.
See Golden v. Newsome, 755 F.2d 1478, 1482 (11th Cir. 1985) (noting
that sentencing is a âcritical stageâ of the criminal proceeding im-
plicating a defendantâs Sixth Amendment right to counsel). Thus,
he argues, he is entitled to relief without a showing of prejudice.
See United States v. Cronic, 466 U.S. 648, 659 n.25 (1984) (âThe Court
has uniformly found constitutional error without any showing of
prejudice when counsel was either totally absent, or prevented
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20 Opinion of the Court 20-13534
from assisting the accused during a critical stage of the proceed-
ing.â). However, âthe vast majority of constitutional errors that oc-
cur at a criminal trial, including Sixth Amendment violations,
should be examined for prejudicial effect and those errors do not
require reversal if they are harmless.â United States v. Roy, 855 F.3d
1133, 1167 (11th Cir. 2017) (en banc) (applying harmless-error anal-
ysis where defense counsel was absent from criminal trial for seven
minutes and what happened during the absence was known and
repeated upon counselâs return). Here, the record does not âsug-
gest the complete denial of counsel or the breakdown of the trial
process.â United States v. Margarita Garcia, 906 F.3d 1255, 1266 (11th
Cir. 2018). The technical malfunctions here do not warrant a pre-
sumption of prejudice because they were brief in the context of the
sentencing hearing and what occurred while defense counsel was
disconnected was repeated when she rejoined, with no adverse ef-
fect on Rodriguezâs sentence.
Because Rodriguez failed to preserve the argument below,
we review for plain error. See id. at 1268 (applying plain error re-
view where defense counsel was absent while the prosecution ex-
amined a witness but âfailed to timely object to the errors notwith-
standing having been given every opportunity to do soâ). Rodri-
guez had multiple opportunities to object to defense counselâs ab-
sence during the sentencing hearing and failed to do so. The district
court suggested postponing the sentencing hearing and resuming
in person to remedy the technical difficulties. But Rodriguezâs
counsel did not take the court up on its offer. At the close of the
hearing, the district court asked whether either party had any
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20-13534 Opinion of the Court 21
objections. Again, Rodriguez failed to object based on the vide-
oconference malfunctions. We therefore review for plain error.
Even if we were to assume that there was error, which was
plain, under plain error review, a party must show that the error
âaffected substantial rights, which almost always requires that the
error must have affected the outcome of the district court proceed-
ings.â Rodriguez, 398 F.3d at 1299 (alteration adopted) (internal
quotation marks omitted). Rodriguez has failed to show that the
technical malfunctions affected the sentence he received, so his
challenge must fail.
The worst technical malfunction occurred when Rodri-
guezâs counsel disconnected from the videoconference while the
district court was asking Rodriguez about the drug activity that oc-
curred at his house. When defense counsel reconnected, the dis-
trict court repeated the inquiry. While his counsel was present, Ro-
driguez agreed with the prosecutorâs description of the drug activ-
ities that occurred at his house. The district court relied on this in-
formation when making factual findings related to the premises en-
hancement under § 2D1.1(b)(12). The district court did not rely on
any information it obtained from Rodriguez while his counsel was
absent. 4 Thus, Rodriguez has failed to show that the statements he
4 After Rodriguezâs statements during defense counselâs absence, the govern-
ment requested to withdraw its § 5K1 motion to reduce Rodriguezâs sentence
based on acceptance of responsibility. When defense counsel reconnected, Ro-
driguez agreed with the governmentâs description of activities in his house,
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22 Opinion of the Court 20-13534
made while his attorney was disconnected affected the outcome of
his sentencing.
D. The District Court Erred by Imposing Conditions of Su-
pervised Release Not Included in Rodriguezâs Oral Sen-
tence.
Finally, Rodriguez argues he is entitled to resentencing be-
cause the conditions of supervised release imposed in the district
courtâs written judgment were not pronounced during his sentenc-
ing hearing. We agree with Rodriguez that the district court erred
in imposing additional conditions in the written judgment.
A defendant has a right to be present at his sentencing hear-
ing. A district court must orally pronounce a defendantâs sentence
in his presence, and ordinarily the court cannot add to the defend-
antâs sentence in a written judgment entered after the sentencing
hearing. This case calls on us to apply these general principles in
the context of a district courtâs imposition of conditions of super-
vised release. We hold that a district court must pronounce at the
defendantâs sentencing hearing any discretionary conditions of su-
pervised releaseâthat is, any condition of supervised release other
than those mandatory conditions set forth in 18 U.S.C. § 3583(d). A
district court may easily satisfy this requirement by referencing a
written list of supervised release conditions. For instance, the court
may orally adopt the conditions of supervised release
the government did not withdraw its § 5K1 motion, and the district court ul-
timately applied the reduction for acceptance of responsibility.
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20-13534 Opinion of the Court 23
recommended in the defendantâs PSR or in a standing administra-
tive order. By referencing at sentencing a written list, the court af-
fords any defendant who is unfamiliar with the conditions the op-
portunity to inquire about and challenge them.
In this case, at Rodriguezâs sentencing hearing the district
court announced that his sentence included a five-year term of su-
pervised release but did not identify any conditions of supervised
release or reference any written list of conditions. Later, in the writ-
ten judgment, the court added 13 discretionary conditions of su-
pervised release. Because Rodriguez had no notice or opportunity
to be heard regarding these conditions, we vacate the discretionary
conditions that the district court did not announce at the sentenc-
ing hearing and remand. 5
A defendant has a constitutional right to be present and rep-
resented by counsel when the district court pronounces his sen-
tence. See United States v. Huff, 512 F.2d 66, 71 (5th Cir. 1975). The
right to be present at sentencing derives from the Fifth Amend-
mentâs Due Process Clause. See id.; United States v. Gagnon, 470 U.S.
5 The government contends that we should review this argument for plain
error because Rodriguez failed to object to the conditions of supervised release
at his sentencing. As we discuss below, however, Rodriguez had no oppor-
tunity to object at sentencing to the discretionary conditions of supervised re-
lease because they were included for the first time in the written judgment.
See United States v. Bull, 214 F.3d 1275, 1278 (11th Cir. 2000) (concluding de-
fendant did not waive a sentencing issue by failing to object where he âhad no
opportunity to object at sentencing because the court included the require-
ment for the first time in its written final judgmentâ). We therefore review
this legal argument de novo.
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24 Opinion of the Court 20-13534
522, 526 (1985). To satisfy due process, the district court must pro-
nounce the sentence, âgiving the defendant notice of the sentence
and an opportunity to object.â United States v. Diggles, 957 F.3d 551,
560 (5th Cir. 2020) (en banc); cf. United States v. Jackson, 923 F.2d
1494, 1496â97 (11th Cir. 1991) (noting the right to be present at
sentencing ensures that âthe defendant has an opportunity to chal-
lenge the accuracy of information the sentencing judge may rely
on, to argue about its reliability and the weight the information
should be given, and to present any evidence in mitigation he may
haveâ). As the Supreme Court has explained:
[A] defendant has a due process right to be present at
a proceeding âwhenever his presence has a relation,
reasonably substantial, to the fulness of his oppor-
tunity to defend against the charge. The presence of
a defendant is a condition of due process to the extent
that a fair and just hearing would be thwarted by his
absence, and to that extent only.
Gagnon, 470 U.S. at 526 (alterations adopted) (quoting Snyder v.
Massachusetts, 291 U.S. 97, 105â06 (1934)).
Due process concerns arise when a district courtâs in-court
pronouncement of a sentence differs from the judgment that the
court later enters. As our sister circuit has explained, â[i]ncluding a
sentence in the written judgment that the judge never mentioned
when the defendant was in the courtroom is tantamount to sen-
tencing the defendant in absentiaâ and thus offends due process.
Diggles, 957 F.3d at 557 (internal quotation marks omitted). How-
ever, a district courtâs failure to announce each condition of
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20-13534 Opinion of the Court 25
supervised release at sentencing does not necessarily give rise to a
due process violation. Let us explain.
When a district court imposes a term of supervised release,
federal law distinguishes between conditions that the court must
impose and those that it may impose. See 18 U.S.C. § 3583(d). Sec-
tion 3583(d) first lists conditions the court âshallâ impose (some for
all offenses, others for certain offenses). Examples include not com-
mitting a crime or unlawfully possessing a controlled substance,
cooperating in the collection of a DNA sample, paying any restitu-
tion, and registering as a sex offender for offenses that require it. Id.
The statute then states that a district court âmayâ impose
other conditions that are âreasonably relatedâ to certain statutory
sentencing factors, âinvolve[] no greater deprivation of liberty than
is reasonably necessaryâ to accomplish certain sentencing objec-
tives, and are consistent with the Sentencing Guidelines. Id.
We agree with our sister circuits that due process principles
generally require a court to pronounce at the sentencing hearing
discretionary, but not mandatory, conditions of supervised release.
See Diggles, 957 F.3d at 559; United States v. Anstice, 930 F.3d 907, 910
(7th Cir. 2019) (âAs commonplace and sensible as these [discretion-
ary] conditions may be across federal sentences, Congress has not
mandated their imposition. If a district court does choose to impose
them, they must be announced at sentencing.â); United States v.
Rogers, 961 F.3d 291, 296 (4th Cir. 2020) (â[A]ll non-mandatory con-
ditions of supervised release must be announced at a defendantâs
sentencing hearing.â). When a condition is mandatory, âthere is
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26 Opinion of the Court 20-13534
little a defendant can do to defend against it.â Diggles, 957 F.3d at
558. Indeed, by the very nature of a mandatory condition, any ob-
jection that a defendant could raise to the condition would be âfu-
tile.â Id. at 559. We therefore cannot say that a due process viola-
tion occurs when a district court imposes a mandatory condition
that it failed to pronounce at sentencing.
But the analysis is different when a district court imposes in
a written sentence a discretionary condition that it did not an-
nounce at the sentencing hearing. The omission of such a condition
violates principles of due process because the defendant was denied
an opportunity to be heard on the discretionary condition by, for
example, âdisput[ing]â that the condition âis necessaryâ or arguing
that it should take another form. Id. at 558. A defendant may object,
for example, that a particular condition is unreasonably onerous or
does not apply to the defendantâs individual circumstances. See
United States v. Zinn, 321 F.3d 1084, 1088 (11th Cir. 2003) (consider-
ing defendantâs argument that discretionary condition restricting
internet usage was overly burdensome); United States v. Bree, 927
F.3d 856, 858, 860â61 (5th Cir. 2019) (concluding that special con-
dition requiring defendant to participate in a âmental-health treat-
mentâ program based on past substance abuse was inappropriate
when defendant would participate in a separate substance abuse
program and there was no evidence of other mental health condi-
tions).
Turning to this case, Rodriguez raises a general argument
that the district court erred when it imposed the discretionary
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20-13534 Opinion of the Court 27
conditions because it never identified them at the sentencing hear-
ing.6 And the conditions were not identified in Rodriguezâs PSR.7
By adding these conditions of supervised release in the written
judgment issued after the sentencing hearing, the district court de-
nied Rodriguez notice and an opportunity to object to the condi-
tions. See Diggles, 957 F.3d at 559.
The government argues that Rodriguez nevertheless re-
ceived sufficient notice because the Southern District of Florida
previously adopted an administrative order identifying condi-
tionsâincluding those listed in the written judgmentâthat apply
whenever an individual is placed on supervised release. 8 We
6 The district court also imposed mandatory conditions of supervised release
requiring that Rodriguez report to the probation office after his release; not
commit another federal, state, or local crime; not unlawfully use or possess a
controlled substance; report for mandatory drug testing; not possess a firearm,
ammunition, destructive device, or other dangerous weapon; cooperate in the
collection of a DNA sample; and pay any fine or restitution imposed. Rodri-
guez does not challenge the district courtâs imposition of these mandatory
conditions.
7 We agree with our sister circuits who have held that the oral in-court adop-
tion of recommended conditions included in the PSR satisfies the oral pro-
nouncement requirement. See Diggles, 957 F.3d. at 560â61. Here, however, the
district court failed to orally adopt any conditions of supervised release. And,
even if the district court had orally adopted the conditions recommended in
the PSR, the PSR did not include the challenged conditions imposed in the
written judgment.
8 We note that one of the imposed conditions differed slightly from the con-
dition listed in the administrative order. The written judgment required
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28 Opinion of the Court 20-13534
disagree that the mere existence of an administrative order recom-
mending certain conditions of supervised release, without in-court
adoption of that list by the sentencing court, satisfies due process.
We do agree, however, that a district court is not required
to individually pronounce each discretionary condition of super-
vised release if at sentencing the court expressly incorporates a
written list detailing those conditions. See id. at 563 (âA sentencing
court pronounces supervision conditions when it orally adopts a
document recommending those conditions.â); Rogers, 961 F.3d at
299 (â[D]istrict courts may comply with the pronouncement re-
quirement by expressly incorporating a written list of proposed
conditions[.]â). But the district courtâs pronouncement here failed
to reference the administrative order or otherwise indicate that the
court was adopting conditions of supervised release beyond those
mandated by statute. Thus, Rodriguez was denied due process
with respect to these conditions. 9
Rodriguez to notify his probation officer at least 10 days prior to any change
in residence or employment; the equivalent condition in the administrative
order required notification within 72 hours of a change. See Administrative
Order 1988-06.
9 We acknowledge that this due process violation is subject to harmless-error
review. Although the government argued plain, not harmless, error in its brief
on appeal, after oral argument we ordered supplemental briefing on harmless
error. The government bears the burden of establishing that the error was
harmless beyond a reasonable doubt. See Margarita Garcia, 906 F.3d at 1266.
Here, the government has failed to carry its burden.
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20-13534 Opinion of the Court 29
Because the non-mandatory supervised release conditions
were imposed only as part of Rodriguezâs written sentence and not
at the sentencing hearing, we vacate the conditions and remand for
resentencing. On remand, the district court may, after giving Ro-
driguez an opportunity to be heard, reconsider whether to impose
In its supplemental brief, the government argues that the error here
was harmless because the administrative order imposes the challenged condi-
tions âby defaultâ in every criminal case unless the sentencing court orders
otherwise. Gov. Supp. Br. at 10â11. Thus, the government contends, âeven if
the conditions were stricken from the judgment as Rodriguez requests, . . . the
conditions would still apply under the Administrative Order.â Id. at 7.
But, as the government acknowledges, the administrative orderâs con-
ditions are not imposed if the sentencing court orders otherwise. The govern-
ment also brushes aside the inconvenient fact that one of the conditions the
district court imposed does not mirror a similar condition in the administrative
order. Gov. Supp. Br. at 10 n.6. The difference is that the administrative order
requires the defendant to notify the probation officer within 72 hours of a
change in residence or employment, yet Rodriguezâs written judgment re-
quires notification at least 10 days prior to such a change. The government not
only inaccurately describes the condition the judgment imposed as a more âle-
nientâ condition, it fails to explain how the imposition of this more onerous
condition was harmless. That is so even if we were to accept the governmentâs
position that the very existence of the administrative order makes the failure
to pronounce any condition contained in it harmless error. Thus, the govern-
ment has not met its burden to show thatâas we have described the harmless-
error burden in the sentencing contextââthe district court would have im-
posed the same sentence without the error.â United States v. Barner, 572 F.3d
1239, 1248 (11th Cir. 2009).
Lastly, the government argues that Rodriguez has failed to articulate
any objection to the administrative orderâs conditions that would have per-
suaded the district court not to impose them. We will not condone the gov-
ernmentâs attempt to shift its harmless-error burden to Rodriguez.
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30 Opinion of the Court 20-13534
each of the discretionary conditions. See United States v. Johnson, 765
F.3d 702, 711 (7th Cir. 2014). 10
IV. CONCLUSION
For the above reasons, we affirm Rodriguezâs sentence in
part, vacate in part, and remand.
AFFIRMED in part, VACATED and REMANDED in part.
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 con-
clude 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.