United States v. Cynthia Montoya

                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 21-50129

              Plaintiff-Appellee,             D.C. No.
                                           3:20-cr-02914-
 v.                                            LAB-1

CYNTHIA LEON MONTOYA,
                                             OPINION
              Defendant-Appellant.

       Appeal from the United States District Court
         for the Southern District of California
        Larry A. Burns, District Judge, Presiding

      Argued and Submitted En Banc March 22, 2023
                  Pasadena, California

                Filed September 13, 2023

 Before: Mary H. Murguia, Chief Judge, and Johnnie B.
 Rawlinson, Sandra S. Ikuta, Morgan Christen, Jacqueline
H. Nguyen, Michelle T. Friedland, Ryan D. Nelson, Daniel
   P. Collins, Gabriel P. Sanchez, Holly A. Thomas and
             Roopali H. Desai, Circuit Judges.

                Opinion by Judge Ikuta;
                Dissent by Judge Collins
2                        USA V. MONTOYA


                          SUMMARY*


                         Criminal Law

    Affirming in part and vacating in part a sentence
imposed on Cynthia Montoya, and remanding, the en banc
court held that a district court must orally pronounce all
discretionary conditions of supervised release, including
those referred to as “standard” in U.S.S.G. § 5D1.3(c), in
order to protect a defendant’s due process right to be present
at sentencing.
   In so holding, the en banc court overruled in part the
opinion in United States v. Napier, 

 (9th Cir.
2006).
    The en banc court further held that the pronouncement
requirement is satisfied if the defendant is informed of the
proposed discretionary conditions before the sentencing
hearing and the district court orally incorporates by reference
some or all of those conditions, which gives the defendant
an opportunity to object.
    The en banc court vacated only the conditions of
Montoya’s supervised release that were referred to as the
“standard conditions” in the written sentence but were not
orally pronounced. The en banc court remanded for the
limited purpose of allowing the district court to cure its error
by orally pronouncing any of the standard conditions of



*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      USA V. MONTOYA                      3


supervised release that it chooses to impose and by giving
Montoya a chance to object to them.
    Judge Collins dissented. He wrote that in setting new
rules about how federal sentencings should be conducted,
the majority misapplies the due process principles on which
its decision is based, casts doubt on the validity of a
potentially large number of criminal sentences, and sows
confusion about what exactly district courts must do, going
forward, to comply with the majority’s ruling.



                       COUNSEL

James T. Dawson (argued) and Jeremy C. Marwell, Vinson
& Elkins LLP, Washington, D.C.; Kent D. Young, Law
Offices of Kent D. Young, San Diego, California; Michael
A. Heidler, Vinson & Elkins LLP, Austin, Texas; for
Defendant-Appellant.
D. Benjamin Holley (argued) and Oleksandra Johnson,
Assistant United States Attorneys; Daniel E. Zipp, Assistant
United States Attorney, Appellate Section Chief, Criminal
Division; Randy S. Grossman, Acting United States
Attorney; United States Attorney’s Office, San Diego,
California, for Plaintiff-Appellee.
Vincent J. Brunkow, Federal Defenders of San Diego Inc.,
San Diego, California, for Amicus Curiae Federal Defenders
of San Diego Inc.
4                     USA V. MONTOYA


                        OPINION

IKUTA, Circuit Judge:

    Cynthia Leon Montoya appeals her sentence on the
ground that her due process rights were violated when the
district court failed to pronounce certain discretionary
conditions of supervised release in her presence. We hold
that a district court must orally pronounce all discretionary
conditions of supervised release, including those referred to
as “standard” in § 5D1.3(c) of the United States Sentencing
Guidelines Manual (Guidelines), in order to protect a
defendant’s due process right to be present at sentencing.1
In so holding, we overrule in part our opinion in United
States v. Napier, 

 (9th Cir. 2006), and join the
similar conclusions of five of our sister circuits.
                              I
    In August 2020, U.S. Customs and Border Protection
(CBP) arrested Montoya for smuggling drugs into the United
States from Mexico via the San Ysidro Port of Entry in San
Diego. When arrested, Montoya had 4.4 kilograms of
cocaine strapped to her back. Her 15-year-old son, who was
traveling with her, had 5.02 kilograms of methamphetamine
strapped to his body. Montoya admitted to the CBP officers
that she had been offered $4,000 to smuggle the drugs into
the United States, that she was aware her son had drugs
strapped to him, and that she had successfully smuggled
drugs across the border on several previous occasions.



1
 U.S. SENT’G GUIDELINES MANUAL § 5D1.3(c) (U.S. SENT’G COMM’N
2018) [hereinafter U.S.S.G.].
                           USA V. MONTOYA                               5


    Montoya pleaded guilty to two counts of knowingly and
intentionally importing 500 grams or more of cocaine and
methamphetamine into the United States, in violation of 

 and 960. The presentence report stated that a
five-year term of supervised release after Montoya’s
custodial sentence was “required and recommended.” As
part of the term of supervised release, the presentence report
recommended “[t]hat the defendant abide by the mandatory
and standard conditions of supervision,” as well as four
additional conditions set forth in full in the presentence
report. At Montoya’s sentencing hearing, after considering
the factors set forth in 

(a), the district court
accepted Montoya’s guilty plea and imposed a sentence of
100 months’ imprisonment plus five years of supervised
release. The district court orally imposed four conditions of
supervised release that were consistent with the four
additional conditions set forth in the presentence report.2 In
its written judgment, the court included both the mandatory
conditions of supervised release required by 

(d) and the “standard” conditions of supervised
release recommended in § 5D1.3(c) of the Guidelines.3
    On appeal, Montoya argues that the district court
violated her due process right to be present at sentencing by


2
  Montoya was: (1) “not to go into Mexico, except for visitation of
relatives,” without permission from the probation officer, and no visit
could “exceed a period of four days”; (2) “to participate in a program of
mental health treatment, [and] take all medications prescribed by a
psychiatrist or a physician”; (3) “to tell the probation officer about all
automobiles she owns or drives”; and (4) “subject to a search of her
person, her property, her residence, and her vehicle by the probation
officer.”
3
    See infra pp. 10–13.
6                           USA V. MONTOYA


not orally pronouncing the standard conditions of supervised
release set forth in § 5D1.3(c) in her presence during the
sentencing hearing.4       A three-judge panel rejected
Montoya’s argument. United States v. Montoya, 

 (9th Cir.), reh’g granted and opinion vacated, 

 (9th Cir. 2022). We agreed to rehear this case en banc
to reconsider our rule that the standard conditions of
supervised release need not be orally pronounced as part of
sentencing.5 See Napier, 

.
    We have jurisdiction under 

 and 

(a). We review de novo the legality of a
sentence, see United States v. Avila-Anguiano, 

 (9th Cir. 2010), including the question whether
the court made a legal error in imposing a condition of
supervised release, see United States v. Wells, 

 (9th Cir. 2022).6 We reject the government’s argument

4
 Montoya abandoned her challenges to her guilty plea at oral argument
on rehearing en banc.
5
  Montoya raises two additional challenges to her sentence. First, she
argues that the district court did not properly consider and explain its
reasons for rejecting her requests for variances for imperfect duress and
her mental health conditions. Second, she argues that her sentence was
substantively unreasonable because it failed to account for her lack of
criminal history, and overemphasized the need for deterrence and the
seriousness of the offense. The three-judge panel addressed and rejected
these arguments. See Montoya, 48 F.4th at 1037–38. We agree with the
three-judge panel’s reasons for rejecting these arguments, and we adopt
them as our own. See United States v. Swisher, 

, 304 n.3
(9th Cir. 2016) (en banc).
6
  Because Montoya claims that the district court’s failure to make an oral
pronouncement of the standard conditions of supervised release imposed
in her written sentence violated her due process rights, but does not assert
that the substance of any particular supervised release condition was
improper, we review her claim de novo, not for abuse of discretion. See
                          USA V. MONTOYA                             7


that Montoya forfeited her challenge to the district court’s
failure to make an oral pronouncement of the standard
conditions of supervised release by not objecting during the
sentencing hearing. Because Montoya did not know that the
district court intended to impose the standard conditions of
supervised release until after she received the written
judgment, Montoya did not have “any real opportunity to
object” to the district court’s failure to make an oral
pronouncement of those conditions during the sentencing
proceedings. United States v. Reyes, 

(9th Cir. 2021) (quoting United States v. Blueford, 

 (9th Cir. 2002)). Although the presentence report
recommended that Montoya abide by the standard
conditions of supervision, the district court did not adopt that
recommendation during the sentencing hearing, leaving
Montoya unaware as to whether it would impose one or more
standard conditions. In light of the court’s silence, we do not
review Montoya’s challenge to the imposition of those
conditions for plain error. See FED. R. CRIM. P. 51(b) (“If a
party does not have an opportunity to object to a ruling or
order, the absence of an objection does not later prejudice
that party.”); see also United States v. Mancinas-Flores, 

 (9th Cir. 2009) (“[A]n objection is required
only if the court affords a party the opportunity to make
one.”).




United States v. Langley, 

 (9th Cir. 2021) (per
curiam) (“We review the conditions of supervised release imposed by a
district court for an abuse of discretion, and review de novo whether a
supervised release condition violates the Constitution.” (citations and
quotation marks omitted)).
8                      USA V. MONTOYA


                              II
    We first consider the scope of a defendant’s right to be
present for the oral pronouncement of conditions of
supervised release.
                              A
    “[A] defendant is guaranteed the right to be present at
any stage of the criminal proceeding that is critical to its
outcome if his presence would contribute to the fairness of
the procedure.” Kentucky v. Stincer, 

(1987); see also Hovey v. Ayers, 

 (9th Cir.
2006) (defining a “critical stage” as “any ‘stage of a criminal
proceeding where substantial rights of a criminal accused
may be affected’” (quoting Mempa v. Rhay, 

 (1967))). Although “[t]he constitutional right to
presence [during a critical stage of a criminal proceeding] is
rooted to a large extent in the Confrontation Clause of the
Sixth Amendment,” the Supreme Court has recognized that
in situations “where the defendant is not actually confronting
witnesses or evidence against him,” the right to presence “is
protected by the Due Process Clause.” United States v.
Gagnon, 

 (1985) (per curiam).
    While the right to be present is “an essential condition of
due process,” Snyder v. Massachusetts, 

(1934), it is not absolute. In Snyder, the Supreme Court
rejected a defendant’s argument that he had a right to be
present when the jury viewed the scene of the crime. 

. The Court explained that, although the defendant may
have a right “to be present in his own person whenever his
presence has a relation, reasonably substantial, to the
fullness of his opportunity to defend against the charge,” 

at 105–06, the defendant has no right to be present “when
presence would be useless, or the benefit but a shadow,” 

                           USA V. MONTOYA                               9


at 106–07. Therefore, “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.” 

 at 107–08.
    The due process right to be present applies to sentencing
because “sentencing is a critical stage of the criminal
proceeding” and the sentencing process “must satisfy the
requirements of the Due Process Clause.”7 Gardner v.
Florida, 

 (1977) (plurality opinion).
“After conviction, a defendant’s due process right to liberty,
while diminished, is still present. He retains an interest in a
sentencing proceeding that is fundamentally fair.”
Betterman v. Montana, 

, 448 (2016). Because


7
  The Supreme Court has not directly addressed the constitutional basis
for a defendant’s right to be present during sentencing, and the circuits
are split on the basis for this right. Compare United States v. Diggles,

 (5th Cir. 2020) (en banc) (Due Process Clause), with
United States v. Ferrario-Pozzi, 

 (1st Cir. 2004)
(Confrontation Clause), and United States v. Townsend, 

 (10th Cir. 1994) (same). We have likewise been inconsistent.
Compare Hays v. Arave, 

 (9th Cir. 1992) (Due Process
Clause), overruled on other grounds by Rice v. Wood, 

,
1144 n.8 (9th Cir. 1996) (en banc), with Napier, 

(Confrontation Clause), and United States v. Aguirre, 

 (9th Cir. 2000) (same). We now hold that, under the Supreme
Court’s reasoning in Gagnon, the right to be present at proceedings that
lack testimony, which includes most sentencings, comes from the Fifth
Amendment’s Due Process Clause.              See 470 U.S. at 526–27.
Nevertheless, in those rare instances where a sentencing proceeding
includes evidence or witness testimony, see FED. R. CRIM. P. 32(i)(2),
the right to be present may also be protected by the Confrontation Clause.
See United States v. Braman, 

, 479–80 (8th Cir. 2022). To
the extent our precedent is to the contrary, it is overruled. Because
neither evidence nor witnesses were introduced at Montoya’s sentencing,
we must determine whether her due process rights were violated.
10                      USA V. MONTOYA


the vast majority of prosecutions culminate in guilty pleas,
sentencing is “frequently the most important part of the
criminal proceeding” for the defendant, and indeed is often
the only part “in which the individual and the state disagree
about the proper outcome.” Hays, 

.
     A “sentence is imposed at the time it is orally
pronounced.” Aguirre, 

; see also FED. R.
CRIM. P. 35(c) (“‘[S]entencing’ means the oral
announcement of the sentence.”). For this reason, “if there
is a conflict between the sentence orally imposed and written
judgment, the oral pronouncement, as correctly reported,
controls,” Aguirre, 

, because “[t]he only
sentence that is legally cognizable is the actual oral
pronouncement in the presence of the defendant,” United
States v. Munoz-Dela Rosa, 

 (9th Cir.
1974) (per curiam). Because sentencing is a critical stage
that occurs at the time the sentence is orally pronounced, the
right to be present at sentencing means that the defendant
must be physically present when the sentence is orally
pronounced. See Aguirre, 

; see also FED.
R. CRIM. P. 43(a)(3).
    Sentencing typically involves the imposition of a term of
supervised release.8 See 

(a) (providing that
a court “may include . . . a term of supervised release” as
part of the sentence, but “shall” impose such a term if
required by statute). “Supervised release is ‘a form of

8
  Nearly three quarters (72.9%) of the defendants convicted of
federal crimes are sentenced to a term of supervised release. U.S.
S ENT’ G C OMM ’ N , 2020 ANNUAL REPORT AND S OURCEBOOK OF
F EDERAL S ENTENCING S TATISTICS, at tbl. 18 (2020),
https://www.ussc.gov/sites/default/files/pdf/research-and-
publications/annual-reports-and-sourcebooks/2020/Table18.pdf
[https://perma.cc/NA3T-BK5G].
                          USA V. MONTOYA                            11


postconfinement monitoring’ that permits a defendant a kind
of conditional liberty by allowing him to serve part of his
sentence outside of prison.” Mont v. United States, 

 (2019) (quoting Johnson v. United States,

 (2000)); see 

(a). Both
“the terms and conditions of supervised release are a part of
the [defendant’s] sentence.” United States v. Paskow, 

 (9th Cir. 1993).
    If a court imposes a term of supervised release, it is
required to impose certain mandatory conditions. See 

(d). Under § 3583(d), courts “shall order, as
an explicit condition of supervised release,” that all
defendants: (1) not commit another federal, state, or local
crime; (2) pay any remaining restitution; (3) not unlawfully
possess a controlled substance; (4) submit to a drug test
within 15 days of release and at least two periodic drug tests
thereafter; and (5) cooperate in the collection of a DNA
sample.9 Id. (emphasis added).10
    A court may also impose discretionary conditions of
supervised release that “it considers to be appropriate.” Id.
District courts “enjoy broad discretion in fashioning the
conditions needed for successful supervision of a
defendant,” but their discretion remains “subject to three
primary constraints.” United States v. LaCoste, 

 (9th Cir. 2016). “First, the condition must be

9
 The drug test condition “may be ameliorated or suspended by the court”
under certain circumstances. 

(d).
10
   Section 3583(d) also lists additional mandatory conditions for
defendants convicted of particular crimes. First-time domestic violence
offenders must attend a court-approved rehabilitation program, and
convicted sex offenders must comply with the requirements of the Sex
Offender Registration and Notification Act. 

(d).
12                         USA V. MONTOYA


reasonably related to the nature and circumstances of the
offense; the history and characteristics of the defendant;” or
the goals of just punishment, “deterrence, protection of the
public, or rehabilitation.” 

 at 1190–91; see 

(d)(1), 3553(a)(1), (a)(2)(A)–(D); United States v.
Napulou, 

 (9th Cir. 2010). Second, the
condition must “involve[] no greater deprivation of liberty
than is reasonably necessary” to serve the goals of
supervised release. 

(d)(2). And finally, the
condition must be “consistent with any pertinent policy
statements issued by the Sentencing Commission.”11 

§ 3583(d)(3); LaCoste, 

.
    The Guidelines give district courts guidance for
imposing appropriate conditions of supervised release. See
U.S.S.G. § 5D1.2 (Term of Supervised Release); id. § 5D1.3
(Conditions of Supervised Release).          In addition to
discussing mandatory conditions that are required by statute,
id. § 5D1.3(a), the Guidelines provide three different lists of
discretionary conditions: thirteen “standard” conditions that
“are recommended for supervised release,” id. § 5D1.3(c);
eight “special” conditions that “may otherwise be
appropriate in particular cases,” id. § 5D1.3(d); and six
“additional” conditions that “may be appropriate on a case-
by-case basis,” id. § 5D1.3(e).12 The Guidelines also clarify

11
   Section 3583(d) sets forth additional discretionary conditions of
supervised release applicable to specified types of defendants.
12
  The “standard” conditions of supervised release state that a defendant
shall: (1) “report to the probation office in the federal judicial district
where he . . . is authorized to reside within 72 hours of release from
imprisonment”; (2) report to the probation officer as instructed; (3) “not
knowingly leave the federal judicial district where he . . . is authorized
to reside without first getting permission from the court or the probation
officer”; (4) “answer truthfully the questions asked by the probation
                            USA V. MONTOYA                               13


that a district court “may impose other” discretionary
conditions of supervised release. Id. § 5D1.3(b).
    Because a defendant has a right to be present at
sentencing “to the extent that a fair and just hearing would
be thwarted by his absence,” Snyder, 

, it
follows that a defendant has the right to be present during the
oral pronouncement of conditions of supervised release to
the extent “his presence has a relation, reasonably
substantial, to the fullness of his opportunity to defend
against” the condition, 

 at 105–06.
    A defendant’s due process right to be present at a critical
stage is not violated if the district court imposes mandatory
conditions of supervised release only in the written
judgment. See Napier, 

. Because these
conditions are required under 

(d), a
defendant cannot defend against them, see Diggles, 957 F.3d

officer”; (5) “live at a place approved by the probation officer”; (6)
“allow the probation officer to visit the defendant at any time at his . . .
home or elsewhere,” and “permit the probation officer to take any items
prohibited by the conditions of the defendant’s supervision that [the
probation officer] observes in plain view”; (7) “work full time (at least
30 hours per week) at a lawful type of employment, unless the probation
officer excuses the defendant from doing so”; (8) “not communicate or
interact with someone the defendant knows is engaged in criminal
activity”; (9) notify the probation officer within 72 hours if the defendant
is arrested or questioned by a law enforcement officer; (10) “not own,
possess, or have access to a firearm, ammunition, destructive device, or
dangerous weapon”; (11) “not act or make any agreement with a law
enforcement agency to act as a confidential human source or informant
without first getting the permission of the court”; (12) comply with an
instruction by the probation officer to notify another person (including
an organization), if the probation officer determines that the defendant
poses a risk to that person; and (13) “follow the instructions of the
probation officer related to the conditions of supervision.” U.S.S.G.
§ 5D1.3(c).
14                         USA V. MONTOYA


at 558, and so a defendant’s presence during the oral
pronouncement of mandatory conditions “would be useless,
or the benefit but a shadow,” Snyder, 291 U.S. at 106–07.13
     The situation is different when a court imposes a
condition that is not mandated by 

(d) and
is thus discretionary. Because district judges enjoy “wide
latitude” to impose non-mandatory conditions of supervised
release, United States v. Weber, 

 (9th Cir.
2006), which is constrained only by the requirements of 

(d)(1)–(3), the defendant has a due process
right to be present to defend against them, Snyder, 

.      Unless present when these conditions are
pronounced, a defendant cannot “dispute whether [the
condition] is necessary or what form it should take.”
Diggles, 

. Defendants sentenced in absentia
are denied “their best chance to oppose [a] supervised-
release condition[] that may cause them unique harms,”
United States v. Rogers, 

 (4th Cir. 2020),
or even to flag “inaccurate statements” or assist their counsel
“in making strategic choices” on how to challenge a given
condition, Hays, 

 n.7. Therefore, a district
court’s failure to pronounce discretionary conditions of
supervised release violates a defendant’s due process right
to be present at a critical stage of the criminal proceedings.
See Campbell v. Rice, 

 (9th Cir. 2005)
(en banc).


13
  Snyder made clear that while a court may regulate the procedures of a
criminal proceeding, due process requires that it give a defendant “notice
of the charge and an adequate opportunity to be heard in defense of it.”

. In this context, a defendant has “notice [that] he was
subject to . . . mandatory conditions because they appear in § 3583(d).”
United States v. Anstice, 

 (7th Cir. 2019).
                      USA V. MONTOYA                       15


     A defendant’s right to be present for the imposition of a
condition of supervised release to which a defendant could
raise a defense applies to any condition imposed by the
district court that is not mandated by statute, without regard
to whether the Guidelines label this condition “standard”
under § 5D1.3(c) or “special” under § 5D1.3(d). Although
the “standard” conditions might be “boilerplate” in form,
Napier, 

, the district court retains full
discretion over the decision to impose them, subject only to
the requirements of 

(d)(1)–(3), based on its
individualized assessment of the defendant. See United
States v. Matthews, 

 (D.C. Cir. 2022) (“[N]o
matter how commonsensical the standard conditions may
seem, the governing statute classifies them as discretionary .
. . .”); see also Anstice, 

 (“As commonplace
and sensible as these . . . conditions may be across federal
sentences, Congress has not mandated their imposition.”).
    We previously took a different view, holding that district
courts need not orally pronounce the standard conditions of
supervised release set forth in § 5D1.3(c) when sentencing a
defendant. See Napier, 

. In Napier, the
district court accepted a defendant’s guilty plea and
sentenced him to nine months in prison and three years of
supervised release. 

. At the sentencing hearing,
the district court stated that “[t]he terms and conditions of
final release will be provided in a final judgment in this
case,” but “summarized the effect of some of the ‘standard’
conditions of supervised release that are recommended by
[U.S.S.G.] § 5D1.3(c) for imposition in every case.” Id.
“After the [sentencing] hearing, the court issued a written
judgment that included not only the standard conditions, but
also six nonstandard conditions of supervised release.” Id.
16                     USA V. MONTOYA


    Although we held “that the district court erred when it
included in the written judgment nonstandard conditions of
supervised release without first announcing those conditions
as part of [the defendant’s] oral sentence,” id., we also held
that this rule did not apply either to conditions that were
mandatory under § 3583(d), or conditions “recommended by
the Guidelines as standard, boilerplate conditions of
supervised release” under § 5D1.3(c), id. at 1043. We
reasoned that the standard conditions “are sufficiently
detailed that many courts find it unnecessarily burdensome
to recite them in full as part of the oral sentence,” and
concluded that “imposition of these mandatory and standard
conditions is deemed to be implicit in an oral sentence
imposing supervised release.” Id. Therefore, we held that
“[w]hen those standard conditions are later set forth in a
written judgment, the defendant has no reason to complain
that he was not present at this part of his sentencing because
his oral sentence necessarily included the standard
conditions.” Id.
    As we have explained, Napier’s conclusion is wrong
because it is based on an incorrect premise. Contrary to
Napier’s statement that standard conditions of supervised
release are “necessarily included” in an oral sentence, id., the
Guidelines make them entirely discretionary, and therefore
the defendant (if present when they were pronounced) could
defend against them, see Snyder, 

. The
standard conditions are thus analogous to what Napier
referred to as “nonstandard” conditions, which had to be
announced as part of the defendant’s oral sentence. 463 F.3d
at 1041–42. We therefore overrule Napier to the extent it
held that a district court need not orally pronounce the
standard conditions recommended by § 5D1.3(c) at the
sentencing hearing.
                       USA V. MONTOYA                        17


    In reaching this conclusion, we join five of our sister
circuits in holding that, for purposes of determining whether
a defendant has a due process right to be present for
sentencing (specifically, for the oral pronouncement of a
condition of supervised release), what matters is whether a
condition is mandatory or discretionary under 

(d). See United States v. Geddes, 

,
1215 (10th Cir. 2023); Matthews, 

; Rogers, 961
F.3d at 296–97; Diggles, 957 F.3d at 558–59; Anstice, 

. If a condition is mandatory, then a defendant
need not be present for its oral pronouncement. If a
condition is discretionary, the district court must orally
pronounce it in the presence of the defendant, without regard
to how it is classified by the Guidelines. This bright-line rule
ensures that a defendant’s right to be present at sentencing is
protected and more faithfully adheres to the text of
§ 3583(d).
                               B
                               1
    Having established that the defendant is entitled to be
present for the district court’s oral pronouncement of all
discretionary conditions of supervised release, we now
consider how district courts can satisfy this requirement. We
agree with our sister circuits that the district court may
satisfy the oral pronouncement requirement when imposing
discretionary conditions of supervised release at the
sentencing hearing in two different ways. The district court
can recite each condition it elects to impose. Alternatively,
where the defendant has been informed of the proposed
conditions of supervised release in advance of sentencing,
the court can incorporate those conditions by reference at the
hearing. See Diggles, 

; Matthews, 

                        USA V. MONTOYA


at 6 n.2; see also United States v. Wise, 

(9th Cir. 2004) (stating that “advance written notice” of
supervised release conditions “work[s] best”). When the
court states at the sentencing hearing in the presence of the
defendant that it is incorporating by reference one or more
discretionary conditions from a document or list provided to
the defendant in advance of the hearing, the defendant has a
meaningful opportunity to challenge those conditions. The
court’s oral incorporation by reference of this previously
provided list or document would satisfy the due process
requirement that the defendant be present during the critical
stage of sentencing. Indeed, such a procedure gives the
defendant “‘far more opportunity to review and consider
objections to those conditions’ than defendants who hear
about them for the first time when the judge announces
them.” Diggles, 957 F.3d at 560–61 (quoting United States
v. Bloch, 

 (7th Cir. 2016)).
    The court’s oral incorporation by reference of conditions
set forth in the presentence report at the sentencing hearing
would generally meet this requirement. The presentence
report is provided to the defendant in advance of the
sentencing hearing, and the Federal Rules of Criminal
Procedure require that “[a]t sentencing, the court . . . must
verify that the defendant and the defendant’s attorney have
read and discussed the presentence report and any addendum
to the report.” FED. R. CRIM. P. 32(i)(1)(A); see also United
States v. Soltero, 

 (9th Cir. 2007) (per
curiam) (holding that a district court must be satisfied that
the defendant has reviewed the presentence report and
discussed it with counsel).14 This ensures that the defendant

14
  Although a “district court need not specifically inquire whether a
defendant has read the presentence report,” Soltero, 

, we
                           USA V. MONTOYA                              19


has been informed of the proposed conditions of supervised
release set forth in the presentence report, so that the district
court’s election to incorporate them by reference gives the
defendant a meaningful opportunity to object to them.
    Alternatively, “[a] document proposing conditions that a
court orally adopts at sentencing may take a form other than”
the presentence report, such as “courtwide or judge-specific
standing orders that list conditions.” Diggles, 

 & n.5. The proposed written notice of discretionary
conditions of supervised release need not be in a particular
type of document, so long as the defendant has a meaningful
opportunity to challenge those conditions by being informed
of the proposed conditions in advance and being given “an
opportunity to review [them] with counsel,” and the court
orally “adopt[s] the written recommendations when the
defendant is in court.” 

 at 561 n.5.15
    In sum, we hold that a district court must orally
pronounce all discretionary conditions of supervised release
in the presence of the defendant. We further hold that this
pronouncement requirement is satisfied if the defendant is

have held that “for Rule 32([i])(1)(A) to be satisfied, the sentencing
judge must ‘reasonably rel[y] on evidence indicating that a defendant has
read the presentence report and discussed it with counsel,’” 

 (quoting
United States v. Lewis, 

 (9th Cir. 1989)).
15
  Contrary to the dissent’s contention, Dissent at 42, we do not exclude
any particular method a district court may use in an effort to satisfy the
incorporation by reference requirement. Because “[s]entencing is a case-
by-case matter,” United States v. Defterios, 

 (9th
Cir. 2003), such a fact-specific inquiry should be addressed on a case-
by-case basis. Here, the district court did not incorporate standard
conditions of supervised release at Montoya’s sentencing, so the
question whether any specific method fails to satisfy this requirement is
not before us.
20                          USA V. MONTOYA


informed of the proposed discretionary conditions before the
sentencing hearing and the district court orally incorporates
by reference some or all of those conditions, which gives the
defendant an opportunity to object.16
                                     2
    Although incorporating the discretionary conditions of
supervised release set forth in the presentence report (or
some other list or document provided to the defendant in
advance of the hearing) by reference is one means by which
the district court can satisfy the requirement that it must
orally pronounce a sentence in the presence of a defendant,
this procedure is distinct from the procedural sentencing
requirements set forth in Rule 32 of the Federal Rules of
Criminal Procedure. Because the dissent conflates Rule 32
with the due process requirement that a sentence be orally
pronounced in the defendant’s presence (which can be
satisfied through incorporation by reference), see Dissent at
36–38, we briefly explain the relevant provisions of Rule 32.


16
   The dissent provides no support for its assertion that “a very large
number” of cases currently on appeal will have to be remanded for
resentencing consistent with our opinion. Dissent at 43. Rather, district
courts in this circuit can continue to incorporate the presentence report
by reference at sentencing, which they have done for decades. See, e.g.,
United States v. G.L., 

 (9th Cir. 1998)
(“Incorporating by reference the relevant paragraphs of the Presentence
Report, the court departed upward two offense levels . . . .”); United
States v. Avila, 

 (9th Cir. 1990) (“The court
incorporated by reference the presentence report . . . .”); United States v.
Gayou, 

 (9th Cir. 1990) (“The district court
incorporated the presentence report as a basis for its sentence.”). Further,
while this “new rule of criminal procedure applies to cases on direct
review,” it “does not apply retroactively . . . on federal collateral
review.” Edwards v. Vannoy, 

, 1554, 1560 (2021).
                        USA V. MONTOYA                        21


     District courts “‘must consult [the] Guidelines and take
them into account when sentencing,’ even though they now
have the discretion to impose non-Guidelines sentences.”
United States v. Cantrell, 

 (9th Cir.
2006) (alteration in original) (quoting United States v.
Booker, 

 (2005)). Among other things,
Rule 32 sets forth the procedures by which a probation
officer can assist the district court in fulfilling this
requirement by calculating the applicable Guidelines
sentence. The probation officer does so by conducting a
presentence investigation, see FED. R. CRIM. P. 32(c), and
then preparing a presentence report that includes relevant
factual information, as well as the probation officer’s
calculations regarding the proper application of the
Guidelines to the defendant’s offense, see id. 32(d). To
ensure that “the district court . . . calculate[s] the Guidelines
range accurately,” United States v. Mix, 

(9th Cir. 2006) (quoting Cantrell, 

), Rule 32
gives the defendant an opportunity to comment on any errors
in the presentence report’s facts or calculations. The report
must generally be provided to the defendant “at least 35 days
before sentencing,” FED. R. CRIM. P. 32(e)(2), and the
defendant then has 14 days to object in writing to any
“material information, sentencing guideline ranges, and
policy statements contained in or omitted from the report,”
id. 32(f)(1). At sentencing, the district court “may accept any
undisputed portion of the presentence report as a finding of
fact,” id. 32(i)(3)(A), but must rule on disputes regarding its
factual assertions or calculations, see id. 32(i)(3)(B); see also
United States v. Dominguez-Caicedo, 

 (9th
Cir. 2022).
    The district court is not bound by any sentencing
recommendations provided by the presentence investigation
22                         USA V. MONTOYA


report, however. See United States v. Herrera-Figueroa,

 (9th Cir. 1990) (“[T]he presentence
report is not binding on the district court.”). To the contrary,
the district court may vary from the Guidelines range or
impose certain types of conditions not previously identified
in the presentence report. See Wise, 391 F.3d at 1032–33.17
Thus, while a defendant can forfeit the right afforded by
Rule 32 to object to factual assertions, see Dominguez-
Caicedo, 

, or errors in the probation officer’s
calculation of the recommended sentencing range by failing
to raise such objections within 14 days of receiving the
presentence report, a defendant does not forfeit the right to
object to the oral sentence itself when it is pronounced
during the sentencing hearing, see, e.g., United States v.
Cervantes, 

 (9th Cir. 2017) (describing
how defense “counsel first raised the suspicionless search
condition and objected to it at the sentencing hearing”), as

17
  We have interpreted Rule 32 as requiring, in some circumstances, that
the district court give the defendant reasonable notice that it is
considering imposing certain types of conditions not previously
identified in the presentence report. We have held that while the district
court need not provide advance notice when it intends to impose “a
condition of supervised release that is contemplated by the
[G]uidelines,” United States v. Lopez, 

 (9th Cir.
2001) (emphasis omitted), it must do so “[w]here a condition of
supervised release is not on the list of mandatory or discretionary
conditions in the sentencing [G]uidelines . . . so that counsel and the
defendant will have the opportunity to address personally its
appropriateness,” Wise, 

. This requirement of advance
notice before the district court imposes an unlisted condition of
supervised release is not related to the requirement that the court make
an oral pronouncement of the sentence (which can be satisfied through
incorporation by reference) in the defendant’s presence. Here, Montoya
does not argue that she was entitled, under Rule 32, to advance notice of
the conditions of supervised release imposed in this case.
                       USA V. MONTOYA                        23


amended on denial of reh’g and reh’g en banc (Sept. 12,
2017). “The operative principle is that the objection need
not be made before the grounds are reasonably known,”
United States v. Gallant, 

 (1st Cir.
2002), and the defendant cannot reasonably know what
discretionary conditions of supervised release the district
court is imposing as part of the sentence until the conditions
are orally pronounced at sentencing. As a result, when the
district court satisfies the oral pronouncement requirement
by incorporating conditions by reference from the
presentence report, Rule 32 is not implicated.
    Furthermore, because a defendant does not forfeit the
right to challenge the sentence pronounced at the sentencing
hearing, a fortiori, the defendant does not forfeit the right to
challenge the district court’s failure to pronounce part of the
sentence orally. Where the district court attempts to satisfy
this requirement by incorporating a previously provided list
of discretionary conditions by reference, a defendant does
not forfeit the right to object that the incorporation by
reference is defective, regardless whether the document
purported to be incorporated is a presentence report or some
other document. The requirement, under the Due Process
Clause, that the sentence be imposed orally in the presence
of the defendant is distinct from Rule 32’s requirements for
objecting to factual assertions and sentencing range
calculations in the presentence report.
                              III
    We now apply these principles to Montoya’s case.
Montoya was entitled to challenge the imposition of the
standard conditions of supervised release that were
subsequently included in her written judgment because they
are discretionary. Thus, she had the due process right to be
24                    USA V. MONTOYA


present during their pronouncement. Because the district
court did not orally pronounce them either by reading the
applicable conditions at sentencing or by incorporating them
by reference in her presence, Montoya’s due process right to
be present at the critical stage of sentencing was violated.
Therefore, we must remand to the district court. See 

(f)(1) (“If the court of appeals determines that
. . . the sentence was imposed in violation of law . . . , the
court shall remand the case for further sentencing
proceedings with such instructions as the court considers
appropriate.”).
    Contrary to the dissent’s assertion, Montoya did not
forfeit her right to object to the standard conditions, even
though the presentence report recommended their
imposition. Dissent at 34, 37. Such recommendations were
not binding on the district court, see Herrera-Figueroa, 

, and did not constitute “the actual oral
pronouncement [of the sentence] in the presence of the
defendant,” Aguirre, 214 F.3d at 1125–26 (quoting Munoz-
Dela Rosa, 

). A defendant’s ability to make
anticipatory objections does not satisfy a defendant’s due
process right to be present when discretionary conditions are
orally pronounced. The dissent’s argument that Montoya
was required “to raise any objections to the standard
conditions prior to the imposition of sentence,” Dissent at
33–34, is unsupported by any authority. Rather, our caselaw
indicates that defendants may object to the imposition of
conditions of supervised release for the first time at their
sentencing hearings. See United States v. Quinzon, 

 (9th Cir. 2011); see also United States v.
Apodaca, 

 (9th Cir. 2011) (noting that
the court modified conditions of supervised release
recommended in the presentence report based on objections
                           USA V. MONTOYA                             25


raised by defense counsel at the sentencing hearing). Here,
Montoya was given no opportunity to object, because the
district court neither pronounced the standard conditions of
supervised release on the record nor incorporated them by
reference to the presentence report.
    We also reject the dissent’s argument that Montoya’s due
process right to be present at sentencing was not violated
because Napier stated that the court’s imposition of standard
conditions “is deemed to be implicit in an oral sentence
imposing supervised release.” Dissent at 29–30 (citing
Napier, 

). Because the standard conditions
are discretionary, our prior judicial ruling that such
conditions are “implicit” in a sentence does not mandate
their inclusion in every sentence.18 Thus, Montoya would
not know during the sentencing proceeding itself whether the
district court had “implicitly” included them in her sentence.
Indeed, in this case, she did not learn that the court had done
so until she received the written judgment, so she had no
meaningful opportunity to defend against their imposition.
Therefore, Montoya was deprived of her due process right to
be present for sentencing—in her case, the oral
pronouncement of discretionary conditions of supervised
release—regardless of our statement in Napier. Cf. Dissent
at 38–40.19


18
  As we have explained, see supra pp. 16–17, Napier erred in stating
that standard conditions of supervised release are “necessarily included”
in an oral sentence. 

. Such conditions are not
necessarily included in every sentence, and therefore are not necessarily
imposed at sentencing if not orally pronounced.
19
  We thus reject the dissent’s argument that our decision today should
not apply retroactively to sentences imposed “while Napier was on the
books.” Dissent at 39–40 & n.3. This argument is doubly mistaken
26                         USA V. MONTOYA


    Our conclusion raises a question about the appropriate
scope of remand. We have held that “the power to remand
for resentencing necessarily encompasses the lesser power
to order a limited remand,” and that “appellate courts are not
precluded from limiting the scope of issues on remand.”
United States v. Ameline, 

, 1079–80 (9th Cir.
2005) (en banc). We have taken different approaches in
cases where supervised release conditions that were not
orally pronounced appeared in a written judgment. For
example, in Reyes, “we exercise[d] our discretion to vacate
the entirety of the supervised release portion of [a
defendant’s] sentence and . . . remand[ed] to the district court
for the limited purpose of imposing a new supervised release
sentence.” 

. In other cases where one or
more conditions were deemed wrongfully imposed, we
exercised our discretion to vacate only a particular portion
of the supervised release sentence. See, e.g., United States
v. Blinkinsop, 

 (9th Cir. 2010) (vacating
a supervised release sentence only as to two special
conditions and ordering a “limited remand”); see also
Soltero, 

 (remanding “to the district court for
it to excise [a] portion of [a] [c]ondition . . . from [the
defendant]’s set of supervised release conditions”); United
States v. Stephens, 

 (9th Cir. 2005).
    In this case, the limited remand approach is appropriate.
We vacate only the conditions of supervised release that
were referred to as the “standard conditions” in the written
sentence but were not orally pronounced. Remand is

because “[c]ourts must apply judicial decisions announcing new
interpretations of criminal procedural rules ‘retroactively to all cases,
state or federal, pending on direct review or not yet final.’” Reyes v.
Garland (Reyes II), 

, 991 (9th Cir. 2021) (quoting Griffith
v. Kentucky, 

 (1987)).
                       USA V. MONTOYA                        27


required so that the district court can cure its error by orally
pronouncing any of the standard conditions of supervised
release that it chooses to impose and by giving Montoya a
chance to object to them. Because the failure to pronounce
those conditions is the only sentencing error—the district
court made adequate findings supporting the reasonableness
of the custodial sentence and properly imposed the
mandatory conditions and orally pronounced special
conditions—we exercise our discretion “to remand to the
district court for the limited purpose of” reconsidering the
supervised release conditions we have vacated herein.
Reyes, 

. Each party shall bear its own costs
on appeal. See United States v. Evans, 

, 1164–
65 (9th Cir. 2018); see also FED. R. APP. P. 39(b).
  AFFIRMED IN PART, VACATED IN PART, and
REMANDED.
28                     USA V. MONTOYA


COLLINS, Circuit Judge, dissenting:

    In setting new rules about how federal sentencings in this
circuit should be conducted, the majority misapplies the due
process principles on which its decision is based, casts doubt
on the validity of a potentially large number of criminal
sentences, and sows confusion about what exactly district
courts must do, going forward, to comply with the majority’s
ruling. I respectfully dissent.
                               I
    Under the current federal sentencing statute, a sentence
of imprisonment will ordinarily include “a requirement that
the defendant be placed on a term of supervised release after
imprisonment.” 

(a). Congress has, by
statute, specified that the supervised release of all defendants
(or of particular categories of defendants) shall be subject to
certain mandatory conditions, such as (for all defendants) the
condition that, during the term of supervised release, the
defendant must “not commit another Federal, State, or local
crime.” 

 § 3583(d). In addition, a district court may
impose additional conditions after considering various
factors, including the “nature and circumstances of the
offense and the history and characteristics of the defendant,”
as well as any relevant guidelines or policy statements issued
by the Sentencing Commission. Id. § 3553(a)(1), (a)(4)–(5);
see also id. § 3583(c).
    The Sentencing Commission has addressed the subject
of supervised release conditions in § 5D1.3 of the U.S.
Sentencing Guidelines. Subsection (a) lists the potential
mandatory conditions that may apply; subsection (c) lists a
set of “standard conditions” that, while discretionary, are
recommended to be used in every case; and subsection (d)
                      USA V. MONTOYA                       29


provides guidance in crafting “special conditions” and lists
several types of conditions that might be appropriate in
particular kinds of cases. The Guidelines’ “standard
conditions” are largely focused on ensuring that, during the
term of supervised release, the probation officer assigned to
the defendant’s case will have the tools necessary to
effectively supervise the defendant. Thus, for example, the
standard conditions address various obligations to report to
the probation officer, to answer truthfully questions posed
by the probation officer, to allow home visits by the
probation officer, and to seek the probation officer’s
approval for certain actions (such as leaving the district or
changing living arrangements). See U.S.S.G. § 5D1.3(c).
The pre-printed national standard form that is provided by
the Administrative Office of the U.S. Courts for entering
“Judgment in a Criminal Case” (Form “AO 245B”) contains
the most common mandatory conditions listed in § 5D1.3(a)
and all of the standard conditions listed in § 5D1.3(c).
    The question presented in this case concerns the
pronouncement of a criminal sentence and, specifically,
what district courts must do, at sentencing, in describing the
conditions of supervised release. In United States v. Napier,

 (9th Cir. 2006), we held that the “mandatory
and standard conditions” of supervised release described in
U.S.S.G. § 5D1.3 are “deemed to be implicit in an oral
sentence imposing supervised release,” even if the district
court does not orally mention those conditions at the
sentencing. Id. at 1043. Thus, under Napier, a district
court’s oral statement that the defendant is subject to a term
of “supervised release” automatically incorporates the
mandatory and standard conditions, absent a contrary
statement from the court. At Defendant Cynthia Montoya’s
sentencing, the district court imposed a term of “supervised
30                    USA V. MONTOYA


release” but did not orally mention either the mandatory or
the standard conditions. In accordance with Napier, the
written judgment nonetheless included those conditions. On
appeal, Montoya contends—and the majority now agrees—
that her due process rights were violated when the standard
conditions were not orally pronounced at her sentencing. In
my view, Montoya’s sentencing fully comported with due
process.
                             II
    I agree with the majority that, under the Due Process
Clause and Federal Rule of Criminal Procedure 43, a district
court must orally pronounce its sentence in the defendant’s
presence. See Opin. at 9–10; see also United States v.
Aguirre, 

 (9th Cir. 2000); FED. R. CRIM.
P. 43(a)(3). There are at least two respects in which this
presence requirement may implicate a defendant’s due
process rights. First, the requirement ensures that the
defendant has a sufficient opportunity to be heard with
respect to any discretionary aspects of the sentence,
including standard or special conditions of supervised
release. Second, the requirement helps to ensure that the
defendant is adequately informed, through the solemn act of
directly addressing the defendant in person in the courtroom,
as to what exactly the sentence is. Neither aspect of
Montoya’s presence rights was infringed in this case.
                             A
    The record overwhelmingly confirms that Montoya had
ample opportunity to object to the imposition of the standard
conditions in her case. Accordingly, there was no violation
of her due process rights on such a theory.
                       USA V. MONTOYA                       31


    We have previously held—and the majority reaffirms,
see Opin. at 22 n.17—that a defendant need not be given
advance notice that the district court is considering
imposing, as a condition of supervised release, one of the
conditions that are expressly “listed in the discretionary
conditions of supervised release in the guidelines.” United
States v. Wise, 

 (9th Cir. 2004) (citing
United States v. Lopez, 

, 1055–56 (9th Cir.
2001)). As Wise explains, because “all defendants have
notice” of the discretionary conditions that are listed in the
Guidelines, the mere fact of such listing alone puts
defendants on notice that such conditions may be on the table
at sentencing. Id. at 1032; see also Lopez, 

(holding that “all defendants are alerted” to the discretionary
conditions listed in the Guidelines and therefore need not be
given advance notice before such a condition is imposed at
sentencing). Indeed, Lopez reached that conclusion with
respect to a “special”—i.e., non-standard—discretionary
condition that is expressly identified in the Guidelines as one
that district courts should consider in appropriate cases. See
Lopez, 258 F.3d at 1055–56 (holding that no advance notice
was required before the district court imposed a condition
that the defendant receive mental health treatment, which is
a special condition listed in § 5D1.3(d)(5) of the Guidelines).
The same is doubly true for the Guidelines’ “standard”
conditions, which Wise noted are those that the Guidelines
recommend “should always be included.” Wise, 

 & n.9 (emphasis added). Accordingly, the Guidelines’
express recommendation that these conditions be imposed in
every case provides ample notice to defendants that such
conditions may be imposed in their individual cases.
    Here, in addition to the constructive notice of the
standard conditions that Wise and Lopez recognize as fully
32                    USA V. MONTOYA


sufficient, Montoya also received actual notice that the
standard conditions were being considered in her case. In
accordance with Federal Rule of Criminal Procedure
32(c)(1)(A) and 

(a), the probation officer
prepared a presentence report (“PSR”) for Montoya’s case.
Because there is no “local rule” or “order in the case”
directing that the probation officer’s sentencing
recommendation be submitted confidentially to the court,
that recommendation was included in Montoya’s PSR. See
FED. R. CRIM. P. 32(e)(3). With respect to the issue of
supervised release conditions for Montoya, the probation
officer explicitly recommended in the PSR that the district
court impose “the mandatory and standard conditions of
supervision,” as well as four special conditions that were set
forth verbatim. There can be no doubt as to what those
recommended “standard conditions” were and that Montoya
is therefore doubly charged with knowledge of them.
Montoya had counsel; her counsel was required under Rule
32 to read and discuss the PSR with her, see FED. R. CRIM.
P. 32(i)(1)(A); and he affirmatively stated at the sentencing
that he had done so. Her counsel could not reasonably have
had any doubt as to what the phrase “standard conditions”
means, because that phrase unmistakably refers to the
longstanding and familiar “standard conditions” that are set
forth in § 5D1.3(c) of the Guidelines. Indeed, as I have
noted, those standard conditions come pre-printed on the
national standard form that is used to prepare written
judgments in federal criminal cases—a form that any
experienced federal criminal defense attorney has seen
innumerable times. If Montoya’s attorney failed to go over
the standard conditions with her and she can show prejudice
from that, she might conceivably have an ineffective
assistance of counsel claim. But the PSR’s use of the phrase
                      USA V. MONTOYA                      33


“standard conditions” provides fully sufficient actual notice
as to exactly what conditions are being referenced in the
PSR.
    Moreover, having been explicitly informed that the PSR
recommended imposition of the “standard conditions” of
supervised release, Montoya then had the concomitant
obligation to object to any of those conditions that she
thought were unwarranted in her case. See FED. R. CRIM. P.
32(f)(1) (requiring the parties, “[w]ithin 14 days after
receiving the presentence report,” to “state in writing any
objections”).      Montoya filed a detailed sentencing
memorandum addressing the calculation of her sentencing
guidelines range and suggesting various grounds for
downward departure and variance from the guidelines range,
but she did not otherwise file any objections to the PSR. If
Montoya had thought that the PSR’s reference to “standard
conditions” was unclear, she could have raised that
objection, but she did not. Thereafter, at sentencing,
Montoya’s counsel had the further opportunity to “comment
on the probation officer’s determinations and other matters
relating to an appropriate sentence.” See FED. R. CRIM. P.
32(i)(1)(C). However, Montoya did not raise any objection
to any of the conditions recommended in her PSR, including
the special ones, in either her sentencing memorandum or in
her or her counsel’s comments prior to the imposition of
sentencing. Indeed, even now, Montoya has articulated no
substantive objections to any of the standard conditions.
Opin. at 6–7 n.6. By failing to raise any objections to the
standard conditions prior to the imposition of sentence,
34                         USA V. MONTOYA


Montoya forfeited any substantive objection to those
conditions.1
    The majority nonetheless says that Montoya’s wholesale
failure to raise any objection to the standard conditions prior
to the imposition of sentence did not result in any such
forfeiture of substantive objections. See Opin. at 24
(“Montoya did not forfeit her right to object to the standard
conditions, even though the presentence report
recommended their imposition.”). The majority suggests
that Rule 32(f)(1)’s obligation to file written objections to
the PSR only extends to the PSR’s “factual information” and
its “calculations” concerning the Guidelines range, and
therefore does not extend to any other matters, such as the
PSR’s recommendations concerning conditions of
supervised release. See Opin. at 21. The majority’s theory
is apparently that the obligation of defendants to raise
objections to the PSR’s recommendations extends only to
those matters as to which the district court must make
specific findings under Rule 32(i)(3)(B). See Opin. at 21–
22; see also United States v. Petri, 

 (9th

1
  By contrast, a procedural error that occurs in the course of the court’s
actual imposition of sentence cannot be known before it occurs, and so
the obligation to object to it does not arise until it occurs. See United
States v. Valencia-Barragan, 

, 1108 & n.3 (9th Cir. 2010)
(applying plain error to procedural objection in light of failure to object
after imposition of sentence and holding that earlier substantive
objections to sentence did not preserve an objection to the procedural
error); see also United States v. Flores-Mejia, 

 (3d Cir.
2014) (en banc) (“[W]e now hold that a defendant must raise any
procedural objection to his sentence at the time the procedural error is
made, i.e., when sentence is imposed without the court having given
meaningful review to the objection.”). I address the issue of alleged
procedural error in the pronouncement of sentence separately below. See
infra section II(B).
                           USA V. MONTOYA                               35


Cir. 2013) (holding that “[o]nly specific factual objections
trigger Rule 32(i)(3)(B),” and that a “specific factual
objection addresses a factual inaccuracy; it does not merely
object to recommendations, opinions, or conclusions”). But
whether the obligation is imposed by Rule 32(i)(3)(B) itself
or by 

(d), a district court at sentencing must
set the conditions of supervised release, and it is an odd
reading of the rules to declare that this is a unique area in our
adversarial system in which the parties have no obligation,
prior to the court’s ruling, to inform the court of the parties’
positions as to a matter on which the court must rule. It is
apparently now the law in our circuit that, when it comes to
conditions of supervised release—even ones specifically
recommended by the probation office or the Government—
defendants can simply sit on their hands, wait for the district
court’s imposition of sentence, and only then start the
process of raising objections. This backwards view of
sentencing procedure is quite wrong. The oral imposition of
sentence is supposed to be the end of the process, and it is
only in exceptional cases (such as where the district court
commits an unexpected error in pronouncing the sentence)
that the issue of post-sentencing objections properly arises.
See generally 3 CHARLES ALAN WRIGHT AND SARAH N.
WELLING, FEDERAL PRACTICE AND PROCEDURE § 540 (5th
ed. 2022); see also supra note 1.2


2
  The two cases cited by the majority do not remotely support its novel
view that an objection to the standard conditions may be raised for the
first time after sentence has been orally imposed. Instead, in both cases,
the defendant raised objections to the relevant conditions before the
imposition of sentence. See United States v. Quinzon, 

 (9th Cir. 2011) (noting that, prior to the imposition of sentence, the
defendant objected, at the sentencing hearing, to the imposition of a
special computer-use condition that had been mentioned in his plea
36                         USA V. MONTOYA


    Against this backdrop, the majority’s assertion that
“Montoya was given no opportunity to object” to the
imposition of the standard conditions is demonstrably false.
See Opin. at 25. It is unfathomable to me how the majority
can say that, merely because the district court did not
specifically mention the “standard conditions” of supervised
release in its oral sentence, Montoya therefore “had no
meaningful opportunity to defend against their imposition.”
See Opin. at 25. As I have explained, given that the standard
conditions are always on the table at sentencing and given
the probation officer’s express recommendation that the
standard conditions be imposed, Montoya had ample
opportunity to object to the imposition of the standard
conditions. She simply chose not to do so. On this record,
Montoya cannot be said to have suffered a due process
violation based on the theory that she was somehow

agreement); United States v. Apodaca, 

 (9th Cir.
2011) (noting that the district court adopted the conditions of supervised
release, including the challenged special condition, after considering the
probation office’s presentence report, an addendum filed by the
probation office after receiving the parties’ positions, and objections
raised by the defendant at the sentencing hearing); see also Answering
Brief of the United States, United States v. Apodaca, 

,
at *7 (noting that, in his written sentencing memorandum filed in
advance of sentencing, “Defendant also objected to the majority of
supervised release conditions recommended by the probation officer”).
To the extent that the defendant in Quinzon did not raise any specific
objections to the probation office’s recommended conditions in that case,
that is attributable to the fact that “the probation officer’s recommended
conditions of supervised release were transmitted to the court in a
separate, confidential letter and not disclosed to the parties.” 

; see also FED. R. CRIM. P. 32(e)(3) (granting district courts the
option to receive such recommendations confidentially). The majority’s
position that objections to the standard conditions need not be made in
advance of the oral imposition of sentence is, to quote the majority’s own
words, “unsupported by any authority.” See Opin. at 24.
                       USA V. MONTOYA                       37


deprived of the opportunity to object to the standard
conditions.
    Moreover, the majority’s holding on this score reveals a
fundamental disconnect between the facts of this case and
the majority’s due process theory. As the majority explains,
the Due Process Clause protects a “right to be present during
the oral pronouncement of conditions of supervised release”
only “to the extent ‘[the defendant’s] presence has a relation,
reasonably substantial, to the fullness of his [or her]
opportunity to defend against’ the condition.” See Opin. at
13 (quoting Snyder v. Massachusetts, 

, 105–06
(1934) (emphasis added)). That is why, according to the
majority, there is no due process violation if mandatory
conditions are imposed in the written judgment without
having been pronounced in the defendant’s presence:
because “a defendant cannot defend against them,” a
“defendant’s presence during the oral pronouncement of
mandatory conditions ‘would be useless, or the benefit but a
shadow.’” See Opin. at 13-14 (quoting Snyder, 291 U.S. at
106–07). I do not see why the same logic would not apply
to standard conditions as to which the defendant has
forfeited any objection. In that situation, just as in the
mandatory-condition scenario, the defendant has no
practical ability to defend against the condition, and the
benefit of presence is, to that extent, “but a shadow.” By the
time that the sentence was being orally pronounced in this
case, Montoya had forfeited any objections to the standard
conditions, and she therefore could no longer “defend
against them.” See Opin. at 13-14.
    It follows from the foregoing that, to the extent that
Montoya suffered a violation of her due process right to be
present for the actual oral pronouncement of supervised
release conditions in this case, it must be rooted in something
38                    USA V. MONTOYA


other than the theory that Montoya was deprived of a
meaningful opportunity to object.
                              B
    The only potential remaining due-process-based
objection, it seems, would be if the oral pronouncement of
the sentence failed to adequately inform the defendant of the
sentence, thereby causing the defendant to reasonably
believe, upon leaving the courtroom, that the sentence is
something different from what was later shown in the written
judgment. But on this record, any such claim is untenable.
    I agree with the majority that, in orally pronouncing that
the standard conditions are being included as part of a
supervised-release sentence, a district court is not required
to recite any magic words, nor is it required to undertake the
laborious task of orally reciting them verbatim. The court
may, for example, incorporate by reference a written list
provided in advance, including a list contained in the PSR or
in “courtwide or judge-specific standing orders.” See Opin.
at 19 (citation omitted).
     But in my view, that example is not the only way in
which the district court can, by its oral pronouncement,
adequately communicate to the defendant and her counsel
what conditions of supervised release have been imposed.
If, for example, a local rule or standing order stated that,
unless the district court states otherwise in imposing
sentence, the court’s imposition of a term of “supervised
release” shall be deemed to include the mandatory and
standard conditions, that would also be sufficient. Under
such a regime, everyone would be on notice that, by using
the phrase “supervised release,” the district court was
automatically imposing the mandatory and standard
                            USA V. MONTOYA                                39


conditions. The phrase “supervised release” would itself be
a shorthand for that basic package of conditions.
    That is effectively the regime that has existed in this
circuit at least since our decision in Napier, and until its
abrogation today. Napier announced that, merely by orally
imposing a term of “supervised release,” the district court
would be understood as having imposed the mandatory and
standard conditions, because Napier “deemed” those
conditions “to be implicit in an oral sentence imposing
supervised release.” 

. The Napier court
may have been unwise to adopt that rule, and I have no
particular remorse over its demise today. But during the
time that Napier remained good law, it formed the backdrop
for how to understand an oral imposition of a term of
“supervised release” in this and every other post-Napier
sentencing in this circuit. Consequently, when the district
court orally imposed a term of “supervised release” in
Montoya’s case, that statement must be understood as a
shorthand that incorporates the mandatory and standard
conditions. That shorthand will no longer be available after
today’s decision, but the factual meaning of the district
court’s oral sentence, which occurred while Napier was on
the books, was sufficiently clear at the time it was rendered.3


3
 The majority is therefore wrong in contending (see Opin. at 25–26 n.19)
that my position somehow involves a departure from the principle that
“a new rule for the conduct of criminal prosecutions is to be applied
retroactively to all cases, state or federal, pending on direct review or not
yet final, with no exception for cases in which the new rule constitutes a
‘clear break’ with the past.” Griffith v. Kentucky, 

(1987). That newly announced rules of law must be applied retroactively
to the facts of non-final cases provides no warrant for rewriting the facts
of those cases. What a reasonable person would have understood was
meant by the phrase “supervised release” when it was uttered at
40                          USA V. MONTOYA


Accordingly, the district court’s oral sentence adequately
informed Montoya and her counsel that the standard
conditions were being imposed. At the conclusion of the
sentencing, Montoya could not reasonably have been misled
as to what sentence was just imposed, and her right to
presence was not violated. Accordingly, there was no due
process violation under this theory either.4
                                    III
   In addition to being substantively wrong, the disruptive
implications of today’s decision may be quite significant.
                                    A
    The majority opinion expressly endorses only certain
specific methods for handling the oral pronouncement of
supervised release conditions in light of today’s decision,
and in doing so it pointedly fails to endorse additional
alternatives that have been recognized as acceptable by other
circuits. The disparity creates a substantial cloud of
uncertainty in an area in which clarity is vital.
    The majority agrees that it would be acceptable for a
district court to “recite each condition it elects to impose.”
See Opin. at 17. But no district court would ever want to do
that, because the full recitation of the blizzard of words


Montoya’s 2020 sentencing can only be understood in light of the then-
current rules about what the use of that term signified.
4
  Finally, there can be no contention here that, even if Montoya’s due
process rights were not violated, her broader right to presence under Rule
43(a)(3) was nonetheless infringed. Any such purely rule-based
violation “is harmless if ‘there is no reasonable possibility that prejudice
resulted from the absence.’” United States v. Berger, 

,
1094 n.2 (2007). For the same reasons I have explained, any error here
would be deemed harmless.
                      USA V. MONTOYA                       41


contained in the standard and mandatory conditions would
be tediously laborious for all involved. It is therefore
critical, as a practical matter, to know exactly what other,
more realistic, alternatives would be acceptable. The
majority expressly blesses only one other option—namely,
providing the full list of proposed supervised release
conditions to the defendant “in advance of sentencing” and
then “incorporat[ing] those conditions by reference at the
hearing.” See Opin. at 17 (emphasis added); see also Opin.
at 18–20, 23 (stating that the list must be “previously
provided” or given “in advance” or “before the sentencing
hearing”). Thus, even as the majority reaffirms our caselaw
stating that advance notice of conditions listed in the
Guidelines (standard or special) need not be provided, such
advance notice is the only safe harbor announced in the
majority’s opinion.
     The majority notably does not say whether, as some
courts have indicated, it would suffice if the presentence
report contains a one-line reference to the “standard
conditions” and the court then simply states at the sentencing
that it is imposing the “standard conditions.” See United
States v. Martinez, 

, 1180–81 (5th Cir. 2021)
(noting that the referent of “standard conditions” was clear
in light of a local standing order); see also United States v.
Matthews, 

, 6 & n.2 (D.C. Cir. 2022) (“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.”). I can see no
reason why it would not suffice, for example, to say that “the
court imposes the standard conditions listed in the
Guidelines.” No one could reasonably feign ignorance as to
what those conditions were.
42                     USA V. MONTOYA


     The majority nonetheless declines to address whether
these alternatives would also be acceptable, saying that it
raises a “fact-specific inquiry [that] should be addressed on
a case-by-case basis.” See Opin. at 19 n.15. As a practical
matter, however, the majority’s opinion effectively answers
the question in the negative. The majority is willing to
endorse, up front, the option of providing an advance written
list and then incorporating that list at sentencing. But when
it comes to simply cross-referencing the Guidelines’ list of
standard conditions without having provided an advance list,
the majority says that the viability of that option turns on the
specific facts of the case. Moreover, in upholding its
advance-notice option, the majority says that it works only
“so long as” the record shows that the defendant has been
“informed of the proposed conditions in advance” and been
“given an opportunity to review them with counsel.” See
Opin. at 19 (emphasis added) (simplified).                These
requirements, if taken seriously, exclude the other options I
have described. Indeed, because there is currently only a
requirement in the federal rules to “verify that the defendant
and the defendant’s attorney have read and discussed the
presentence report and any addendum to the report,” see
FED. R. CRIM. P. 32(i)(1)(A) (emphasis added), the
majority’s reasoning might exclude any option for advance
provision of the list other than the presentence report, unless
perhaps the court makes a specific inquiry as to whether a
list of conditions that has been provided in some other form
has been reviewed by the defendant and counsel.
    The practical effect of the majority’s decision will thus
be to require that a written list of conditions be supplied in
advance and that an inquiry be made as to whether the
defendant has reviewed it with counsel. That may be a sound
proposal that the Advisory Committee on the Criminal Rules
                       USA V. MONTOYA                       43


could consider adding to Rule 32, but it seems difficult to
say that due process requires it.
                              B
    In addition to being unwarranted, today’s decision
threatens to result in substantial—and utterly pointless—
costs. District courts in our circuit impose literally
thousands of sentences each year, and it is a safe bet that, in
light of Napier, a very large number of them have not
complied with the requirements set forth in today’s opinion.
The majority attempts to limit the damage by declaring in
advance that what I will refer to as “Montoya errors” do not
provide grounds for a collateral attack on an already final
sentence. See Opin. at 20 n.16. But for the many cases
currently on appeal, the impact of today’s decision could be
quite significant. In every such case in which the district
court relied on Napier’s shorthand, the defendant can now
raise the Montoya issue for the first time on appeal, given
that, under the majority’s decision, that is the first time the
defendant had “any real opportunity to object.” See Opin. at
7 (citation omitted). The result may be many comparable
remands in other cases, each of which will require an in-
person hearing—which will require, for currently
incarcerated defendants, physical transportation back to the
sentencing district court—and all for the limited purpose of
briefly asking the defendant in person whether he or she has
reviewed the list of standard conditions with counsel before
the court then orally adopts that list by cross-reference.
Neither due process nor common sense require such a result.
   I respectfully dissent.