USA v. Braddy, No. 21-50185 (5th Cir. 2022)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on August 26, 2021.
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Case: 21-50185 Document: 00516351000 Page: 1 Date Filed: 06/09/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED June 9, 2022 No. 21-50185 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Marshall Lee Braddy, Defendant—Appellant. Appeal from the United States District Court for the Western District of Texas No. 5:19-CR-264 Before Smith, Wiener, and Southwick, Circuit Judges. Per Curiam:* Marshall Braddy pleaded guilty of conspiring to distribute cocaine and methamphetamine. He also pleaded true to a sentencing enhancement owing to a prior conviction. At a hearing, the district court sentenced Braddy to ten years of imprisonment and five years of supervised release. But the written judgment imposed twenty-seven conditions of supervised release not stated * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 21-50185 Document: 00516351000 Page: 2 Date Filed: 06/09/2022 No. 21-50185 at the hearing. Seventeen of those are standard conditions from a standing order of the Western District of Texas. 1 This appeal decides the fate of those seventeen discretionary conditions. A district court must pronounce discretionary sentencing conditions so that the defendant has “notice and an opportunity to object.” United States v. Diggles, 957 F.3d 551, 563 (5th Cir. 2020) (en banc). Braddy and the government agree that the district court did not satisfy that requirement: At sentencing, the court did not state the seventeen conditions. Nor did it adopt the Western District’s standing order, which lists those conditions, or the presentence report, which advised their imposition. The parties are correct: The district court abused its discretion. That leaves the question of remedy. Braddy and the government ask us to instruct the district court to excise the seventeen conditions from Braddy’s sentence. That is our usual approach, 2 from which we have no reason to depart. We direct the district court to strike those discretionary conditions from the written judgment so that it conforms to the oral sentence. With those instructions, the judgment of sentence is VACATED and REMANDED. 1 Conditions of Probation & Supervised Release (W.D. Tex. as amended Nov. 28, 2016), https://www.txwd.uscourts.gov/wp-content/uploads/Standing%20Orders/District /Conditions%20of%20Probation%20and%20Supervised%20Release.pdf. 2 See, e.g., Diggles, 957 F.3d at 563 (“Our caselaw does not generally give the district court [a] second chance when it fails to pronounce a condition . . . .”); United States v. Omigie, 977 F.3d 397, 407 (5th Cir. 2020); United States v. Mireles, 471 F.3d 551, 558 (5th Cir. 2006); United States v. Rodriguez, 852 F. App’x 810, 811–12 (5th Cir. 2021) (per curiam); United States v. Smith, 852 F. App’x 780, 789 & n.36 (5th Cir. 2021) (per curiam); United States v. Davalos, 810 F. App’x 268, 276 (5th Cir. 2020) (per curiam); United States v. Saldana-Cordero, 735 F. App’x 134, 134–35 (5th Cir. 2018) (per curiam). 2
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