Adoption-by-Reference After Diggles: Rule 32 Verification Is a Prerequisite to Imposing Discretionary Supervised-Release Conditions

Adoption-by-Reference After Diggles: Rule 32 Verification Is a Prerequisite to Imposing Discretionary Supervised-Release Conditions

Introduction

In United States v. Rivera-Hernandez, No. 25-20022 (5th Cir. Oct. 30, 2025) (per curiam) (unpublished), the Fifth Circuit vacated immigration-related special conditions of supervised release because the district court’s written judgment conflicted with its oral pronouncement at sentencing. The panel held that where a district court seeks to impose discretionary (non-mandatory) supervised-release conditions by referencing a Presentence Investigation Report (PSR) appendix, it must first verify on the record that the defendant reviewed the PSR (and its appendix) with counsel, thereby ensuring notice and an opportunity to object. The court concluded the sentencing court abused its discretion by failing to conduct the Rule 32 colloquy and by not “properly adopt[ing]” the PSR or its appendix, notwithstanding the court’s passing reference to “additional conditions” in the PSR appendix.

The case arises from a straightforward illegal-reentry prosecution under 8 U.S.C. § 1326(a). The key legal issue, however, concerns the procedural safeguards governing the imposition of supervised-release conditions—specifically, how far a district court may go in “adopting by reference” conditions contained in a PSR appendix and what Rule 32 requires to make that adoption effective under the Fifth Circuit’s en banc decision in United States v. Diggles, 957 F.3d 551 (5th Cir. 2020).

Summary of the Opinion

The panel (Judges Dennis, Graves, and Duncan; Judge Duncan dissenting) vacated in part and remanded for the limited purpose of conforming the written judgment to the oral pronouncement with respect to two challenged immigration-related special conditions. The district court, at sentencing, told Rivera-Hernandez he must comply with “additional conditions as noted in the Appendix to the Presentence Investigation Report,” but did not:

  • Confirm that the defendant had reviewed the PSR or its appendix with counsel as required by Federal Rule of Criminal Procedure 32(i)(1)(A); or
  • Explicitly adopt the PSR or the appendix in open court.

The written judgment, however, included specific immigration-related special conditions (e.g., reporting to ICE, remaining outside the United States if deported, reporting to probation if legally reentering, and obtaining work authorization). Because these conditions are discretionary under 18 U.S.C. § 3583(d), Diggles requires oral pronouncement (which may be accomplished by proper adoption of a written list after Rule 32 verification). The panel held that requirement was not satisfied and thus the district court abused its discretion. Remedy: vacatur in part and a limited remand to conform the written judgment to the oral pronouncement (i.e., to remove the unpronounced discretionary conditions).

The court rejected the government’s harmless-error contention and declined to follow an unpublished case, United States v. Martinez-Rivera, 2025 WL 985711 (5th Cir. Apr. 2, 2025), under the Fifth Circuit’s rule of orderliness. Judge Duncan dissented, reasoning that Diggles does not require “magic words,” that the district court sufficiently adopted the PSR and appendix and provided notice and opportunity to object, and that Martinez-Rivera persuasively applied Diggles to materially similar facts.

Analysis

Precedents Cited and Their Role

  • United States v. Diggles, 957 F.3d 551 (5th Cir. 2020) (en banc): The cornerstone of the panel’s reasoning. Diggles holds that a district court must orally pronounce all discretionary supervised-release conditions. Pronouncement may be achieved by “adoption by reference” to a written document (e.g., a PSR appendix), but only if the defendant had notice and an opportunity to object. Diggles further instructs that the court should verify the defendant has reviewed the PSR with counsel pursuant to Rule 32(i)(1)(A); if not, sentencing should not proceed. In this case, the majority found the district court did not verify PSR review and thus did not provide the requisite notice/opportunity to object when it referenced the PSR appendix.
  • United States v. Prado, 53 F.4th 316 (5th Cir. 2022): Prado reiterates that the oral pronouncement controls over a conflicting written judgment and reinforces Diggles’s framework. The panel cites Prado on standard of review and on the centrality of pronouncement. Applying Prado, the majority reviewed the imposition of conditions for abuse of discretion (rather than plain error), emphasizing that the absence of a Rule 32 verification deprived the defendant of a meaningful opportunity to object.
  • United States v. Grogan, 977 F.3d 348 (5th Cir. 2020): Grogan, following Diggles, underscores that discretionary conditions must be orally announced or properly adopted by reference after adequate notice/opportunity to object. The panel uses Grogan to bolster the pronouncement requirement and the review framework.
  • United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014): Cited for the Fifth Circuit’s “rule of orderliness,” which holds that a panel cannot overrule or disregard controlling published precedent (like Diggles) in favor of an unpublished decision (like Martinez-Rivera). The majority invoked Traxler to cabin reliance on Martinez-Rivera.
  • United States v. Martinez-Rivera, No. 24-20031, 2025 WL 985711 (5th Cir. Apr. 2, 2025) (unpublished): The government and the dissent relied on this decision as persuasive. There, a panel declined to vacate supervised-release conditions where the district court referenced the PSR appendix without expressly confirming PSR review, viewing the matter as implicating Rule 32 but not as a true conflict between oral and written pronouncements. The Rivera-Hernandez majority distinguished Martinez-Rivera on multiple grounds: (1) it is unpublished; (2) the government had conceded error there; (3) the legal framing differed (no asserted conflict in Martinez-Rivera); and (4) that panel deemed remand futile, whereas here a limited remand is appropriate.

Legal Reasoning

1) Discretionary vs. Mandatory Conditions and the Pronouncement Requirement

The court begins from Diggles’s first principles: discretionary supervised-release conditions—whether labeled “standard,” “special,” or otherwise—must be orally pronounced. By contrast, mandatory conditions listed in 18 U.S.C. § 3583(d) need not be orally pronounced. The immigration-related conditions at issue here (reporting to ICE, remaining outside the United States if deported, reporting to probation after reentry, and obtaining work authorization) are not mandatory under § 3583(d) and thus required oral pronouncement. The district court attempted to impose them by reference to the PSR appendix.

2) Adoption by Reference Requires Rule 32 Verification

Diggles permits a court to satisfy pronouncement by adopting a written list (such as the PSR appendix) if—and only if—the defendant had notice and an opportunity to object. As Diggles explains, these protections are typically ensured by Rule 32’s requirement that the court verify the defendant has read and discussed the PSR with counsel before proceeding. Oral adoption, after that verification, gives the defendant a clear moment to object to any proposed discretionary condition. The majority found that did not happen here:

  • The district court did not ask the defendant whether he reviewed the PSR or its appendix with counsel, nor did it explicitly adopt those materials in open court.
  • Although the court referenced “additional conditions as noted in the Appendix,” that reference did not cure the absence of Rule 32 verification.
  • Because the predicate verification never occurred, the adoption-by-reference did not effect a valid oral pronouncement of the special conditions.

Importantly, the panel reiterates that “the pronouncement requirement is not a meaningless formality,” quoting Diggles. Without Rule 32 verification, the defendant has not been afforded the baseline process Diggles requires.

3) Standard of Review and Preservation

The panel reviewed for abuse of discretion. Although defense counsel had filed a “statement of no objections” to the PSR, the court treated the absence of a Rule 32 verification as effectively depriving the defendant of a meaningful opportunity to object at sentencing. That approach tracks Diggles: when a court has not provided notice/opportunity through proper pronouncement or adoption-by-reference, waiver/forfeiture principles do not foreclose relief, and the error is reviewed under the ordinary standard for imposing conditions. Accordingly, the panel found an abuse of discretion in imposing the unpronounced conditions.

4) The Written Judgment Must Yield to the Oral Pronouncement

Consistent with Prado and Grogan, the panel emphasized that the oral pronouncement (properly understood) controls; if the written judgment adds discretionary conditions not properly pronounced, those conditions cannot stand. The remedy is a limited remand to conform the written judgment to what was validly pronounced—here, to remove the immigration-related special conditions that were not properly adopted at sentencing.

5) Addressing Harmlessness and Martinez-Rivera

The government argued any failure to verify PSR review was harmless because the court alluded to the appendix and defense counsel had lodged no objections. The panel rejected that view, pointing to Diggles’s clear procedural steps and insisting that Rule 32 verification is integral to ensuring actual notice and a chance to object. As to Martinez-Rivera, the panel declined to be guided by an unpublished disposition that the government itself had litigated differently, and that framed the issue without finding a conflict between oral and written pronouncements. The rule of orderliness foreclosed privileging an unpublished decision over Diggles.

Majority vs. Dissent: The Fault Line

  • Majority: Adoption-by-reference is permissible only if preceded by on-the-record Rule 32 verification that the defendant reviewed the PSR (and its appendix) with counsel. A bare reference to “additional conditions” in the PSR appendix is insufficient where the court did not verify review and did not explicitly adopt the PSR/appendix. Because those preconditions were missing, the special conditions were never validly pronounced, and the written judgment’s inclusion of them is reversible error.
  • Dissent (Judge Duncan): Diggles is not about “magic words.” The court sufficiently “adopted” the PSR and its appendix by discussing them in open court, acknowledging defense counsel’s statement of no objections, calculating the Guidelines based on the PSR, and concluding with an express instruction to follow the PSR appendix conditions. That sequence provided notice and multiple opportunities to object. The dissent would follow the unpublished Martinez-Rivera as persuasive authority and affirm.

Impact and Practical Implications

1) For District Courts

  • When imposing discretionary supervised-release conditions by reference to a written list (PSR appendix, standing order, etc.), conduct the Rule 32(i)(1)(A) colloquy on the record: confirm directly with the defendant that he has read and discussed the PSR (and its appendix) with counsel.
  • Orally “adopt” the specific document (e.g., “I adopt the special conditions in the PSR appendix dated [date]”) and invite objections. Consider describing any particularly consequential conditions to ensure clarity.
  • Recognize that immigration-related conditions (e.g., ICE reporting, employment authorization) are discretionary and must be validly pronounced or adopted by reference after verification.
  • Failure to follow these steps risks partial vacatur and a limited remand to conform the written judgment to the oral pronouncement.

2) For Defense Counsel

  • Do not assume a written “statement of no objections” substitutes for the Rule 32 verification. If the court has not conducted the verification, request it. Preserve objections to any discretionary conditions, especially those appearing only in the PSR appendix or standing order.
  • Monitor for divergence between the oral pronouncement and the written judgment. If discretionary conditions appear in the written judgment that were not properly pronounced, seek a conforming amendment or relief on appeal.

3) For the Government

  • Encourage sentencing courts to make a clear record of Rule 32 verification and explicit adoption of any PSR appendix conditions. Reliance on “harmless error” is risky in the wake of Diggles and its progeny.
  • Be cautious invoking unpublished dispositions like Martinez-Rivera where they appear in tension with Diggles’s process-driven requirements; the rule of orderliness limits their persuasive reach, particularly when a conflict is alleged between oral and written pronouncements.

4) Substantive vs. Procedural Challenges

Rivera-Hernandez is procedural, not substantive. It does not decide whether the immigration-related conditions are reasonable under § 3583(d); it holds that they were not validly imposed because they were not properly pronounced or adopted by reference after Rule 32 verification. Future litigants should separately assess both the procedure (pronouncement/adoption) and the substance (statutory requirements and policy statements) of any discretionary condition.

5) Limited Remand as a Tailored Remedy

The panel’s remedy—vacatur in part and limited remand to conform the written judgment—signals that not every pronouncement error requires full resentencing. When the error consists of additional discretionary conditions appearing only in the written judgment, a targeted remand suffices to excise the improperly imposed terms.

Complex Concepts Simplified

  • Supervised-release conditions: Terms the court imposes to govern a defendant’s conduct after imprisonment. They include:
    • Mandatory conditions (imposed by statute; need not be orally pronounced);
    • Discretionary conditions (sometimes called “standard” or “special” conditions; must be orally pronounced or properly adopted by reference).
  • Oral pronouncement vs. written judgment: The sentence announced in open court controls. If the later written judgment adds discretionary conditions not properly pronounced, those additions must be removed.
  • Adoption by reference: A court can satisfy oral pronouncement by expressly adopting a written list (e.g., PSR appendix or standing order) during the sentencing hearing—after verifying the defendant reviewed it with counsel—thereby giving notice and an opportunity to object.
  • Rule 32(i)(1)(A) verification: Before sentencing, the court must verify on the record that the defendant read and discussed the PSR with counsel. This verification undergirds the notice/opportunity-to-object requirement central to Diggles.
  • Abuse of discretion: The standard the Fifth Circuit used here to review the imposition of supervised-release conditions. The court found the sentencing judge exceeded permissible discretion by imposing unpronounced discretionary conditions.
  • Rule of orderliness: A Fifth Circuit principle that a panel cannot disregard or overrule controlling published precedent based on an inconsistent or less demanding rule found in an unpublished decision.
  • Limited remand: A focused appellate remedy directing the district court to amend the written judgment to match the valid oral pronouncement, without reopening the entire sentencing proceeding.

Conclusion

Rivera-Hernandez reinforces a precise, procedural message for sentencing in the Fifth Circuit: discretionary supervised-release conditions may be imposed by adoption-by-reference only if the court first verifies, on the record, that the defendant has reviewed the PSR (and any appendix listing proposed conditions) with counsel, and then orally adopts those conditions while affording the defendant an opportunity to object. Absent those steps, discretionary conditions appearing only in the written judgment are vulnerable to vacatur.

Although unpublished, the decision hews closely to Diggles, Prado, and Grogan, and it provides concrete guidance on how district courts should operationalize adoption-by-reference. It also cautions litigants against over-reliance on unpublished decisions that appear to dilute Diggles’s procedural safeguards. The key takeaway is straightforward: verify, adopt, and invite objections in open court, or risk a limited remand to pare back the written judgment to what was actually and properly pronounced.

Case Details

Year: 2025
Court: Court of Appeals for the Fifth Circuit

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