United States v. Montoya

82 F.4th 640

UNITED STATES of America, Plaintiff-Appellee, v. Cynthia Leon MONTOYA, Defendant-Appellant.

No. 21-50129

United States Court of Appeals, Ninth Circuit

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

Filed September 13, 2023

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding, D.C. No. 3:20-cr-02914-LAB-1

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.

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

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, 463 F.3d 1040 (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.

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 21 U.S.C. §§ 952 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 18 U.S.C. § 3553(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 18 U.S.C. § 3583(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 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, 48 F.4th 1028 (9th Cir.), reh'g granted and opinion vacated, 54 F.4th 1168 (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, 463 F.3d at 1043.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review de novo the legality of a sentence, see United States v. Avila-Anguiano, 609 F.3d 1046, 1049 (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, 29 F.4th 580, 583 (9th Cir. 2022).⁶ We reject the government's argument 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, 18 F.4th 1130, 1134 (9th Cir. 2021) (quoting United States v. Blueford, 312 F.3d 962, 974 (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, 588 F.3d 677, 686 (9th Cir. 2009) ("[A]n objection is required only if the court affords a party the opportunity to make one.").

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, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987); see also Hovey v. Ayers, 458 F.3d 892, 901 (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, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (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, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam).

While the right to be present is "an essential condition of due process," Snyder v. Massachusetts, 291 U.S. 97, 119, 54 S.Ct. 330, 78 L.Ed. 674 (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. Id. at 108, 54 S.Ct. 330. 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," id. at 105-06, 54 S.Ct. 330, the defendant has no right to be present "when presence would be useless, or the benefit but a shadow," id. at 106-07, 54 S.Ct. 330. 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." Id. at 107-08, 54 S.Ct. 330.

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, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (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, 578 U.S. 437, 448, 136 S.Ct. 1609, 194 L.Ed.2d 723 (2016). Because 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, 977 F.2d at 479.

A "sentence is imposed at the time it is orally pronounced." Aguirre, 214 F.3d at 1125; 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, 214 F.3d at 1125, 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, 495 F.2d 253, 256 (9th Cir. 1974) (per curiam). Because sentencing is a critical stage that occurs at the time the sentence is orally pronounced, the right...