Whether a district court's failure to orally pronounce standard conditions of supervised release during sentencing requires a full resentencing or only a limited remand to reconsider those conditions

No question identified. : vacated the three-judge panel opinion. See Exhibit 2. On September 13, 2023, an en banc panel entered its opinion and judgment. A copy of the en banc opinion is attached as Exhibit 3. United States v. Montoya, 82 F.4th 640 (9th Cir.) (en banc). Ms. Montoya again timely petitioned for rehearing. On December 5, 2023, the Ninth Circuit denied that rehearing petition. See Exhibit 4. This Court’s jurisdiction would be invoked under 28 U.S.C. § 1254(1). Without an extension, Ms. Montoya’s time to petition for writ of certiorari would expire on Monday, March 4, 2024. This application is being filed more than 10 days before that date. Ms. Montoya, a mother of five, was arrested for transporting drugs from Mexico into the United States. She pleaded guilty to intentionally importing cocaine and methamphetamine. At sentencing, the District Court accepted Ms. Montoya’s guilty plea and imposed a sentence of 100 months’ imprisonment and five years of supervised release. During sentencing, the District Court orally pronounced “special” conditions of supervised release, but did not orally pronounce the discretionary “standard” conditions of supervised release listed in Section 5D1.3(c) of the U.S. Sentencing Guidelines. The Court’s written judgment nonetheless imposed thirteen standard conditions of supervised release. On appeal, Ms. Montoya argued that the District Court’s decision to impose the standard conditions of supervised release without orally pronouncing them at sentencing violated her constitutional right to be present at sentencing. Initially, a three-judge Ninth Circuit panel issued an opinion rejecting that argument and affirming the sentence in all respects. See Montoya, 48 F.4th 1028 (Exhibit 1). That decision was vacated upon the grant of Ms. Montoya’s petition for en banc rehearing. In September 2023, the en banc Court issued a 10-to-1 decision that held that “a district court must orally pronounce all discretionary conditions of supervised release, including those referred to as ‘standard’ in [the Sentencing Guidelines], in order to protect a defendant’s due process right to be present at sentencing.” Montoya, 82 F.4th at 644-645 (Exhibit 3 at 4). As a remedy for the violation of Ms. Montoya’s right to be present, however, the Court “vacate[d] only the conditions of supervised release that were referred to as the ‘standard conditions.” Montoya, 82 F.4th at 656 (Exhibit 3 at 26). The Court “remand[ed] to the district court for the limited purpose of reconsidering the supervised release conditions” it had vacated. Jbid. (Exhibit 3 at 27) (internal quotation marks omitted). While acknowledging that the Ninth Circuit’s prior cases “ha[d] taken different approaches” to “the appropriate scope of remand,” the Court held that a “limited remand approach [was] appropriate” where “the failure to pronounce” the standard conditions was “the only sentencing error.” Ibid. (Exhibit 3 at 26-27). Ms. Montoya timely filed a petition for rehearing of the remedial portion of the en banc Court’s decision, arguing that the appropriate remedy for the constitutional violation in her case is a “full resentencing” on remand, including an opportunity to have the custodial portion of her sentence revisited. Ms. Montoya explained that the en banc Court’s remedial holding contravenes the text and intent of 18 U.S.C. §§ 3553 and 3583. Section 3553(a) provides that the sentence imposed must not be “greater than necessary[] to comply with” a set of listed purposes, including the need for the ” « sentence imposed to “afford adequate deterrence,” “protect the public from further crimes,” and “provide just punishment for the offense.” Section 3583(c) in turn provides that, when setting the conditions of supervised release and the length of the supervised release term, the district court “shall consider the factors set forth in section 3553(a)[].” Given that district courts often view the custodial portion of the sentence and the sup