Oral Adoption of PSR Appendix Satisfies Diggles Pronouncement Without an Express Defendant Colloquy (Rule 32 Compliance May Be Inferred)
1. Introduction
Nestor Villafana-Mondragon pled guilty to illegal reentry after a felony conviction under 8 U.S.C. § 1326(a) and (b)(1). The Presentence Investigation Report (PSR) recommended two discretionary supervised-release conditions: (1) immediate reporting to Immigration and Customs Enforcement (ICE) and reporting to probation within 72 hours if he legally returned after deportation; and (2) seeking proper documentation from ICE authorizing work in the United States.
Neither side objected to the PSR or the conditions. At sentencing, the district court repeatedly referenced the PSR, adopted its factual findings and Guideline applications, and instructed that Villafana-Mondragon “shall comply with the additional conditions as noted in the appendix of the [PSR].” The written judgment included the same conditions.
On appeal, Villafana-Mondragon argued the conditions were not adequately pronounced as required by United States v. Diggles, 957 F.3d 551 (5th Cir. 2020) (en banc), because the district court did not confirm that he had reviewed the PSR (and its appendix) with counsel.
2. Summary of the Opinion
The Fifth Circuit affirmed. It held the district court properly pronounced the discretionary conditions by orally adopting them from the PSR appendix—an approach Diggles expressly approves and even recommends.
The court further concluded that, even assuming Diggles incorporates Federal Rule of Criminal Procedure 32(i)(1)(A)’s duty to verify PSR review as part of the pronouncement inquiry, the record supported an inference that Villafana-Mondragon had ample opportunity to review the PSR with counsel and that counsel did review it with him. No explicit, direct question to the defendant was required.
3. Analysis
A. Precedents Cited
1) United States v. Diggles, 957 F.3d 551 (5th Cir. 2020) (en banc)
Diggles is the decision’s doctrinal backbone. The panel quotes Diggles for three propositions:
- A sentencing court must pronounce discretionary supervised-release conditions (those governed by 18 U.S.C. § 3583(d)).
- When a defendant fails to raise a pronouncement objection, review is for plain error if the defendant had notice and an opportunity to object.
- A court can pronounce conditions by orally adopting a document that recommends them (including the PSR).
Here, the panel treats the case as “open-and-shut” under Diggles because the district court orally adopted “the additional conditions as noted in the appendix of the [PSR]” and the written judgment matched.
The key interpretive dispute is Diggles’s discussion of Rule 32 verification. The majority reads Diggles as not imposing a rigid script requiring an express defendant colloquy, while the dissent reads Diggles as requiring that the district court “ensure ‘the defendant confirms review of the PSR’” before relying on oral adoption.
2) United States v. Prado, 53 F.4th 316 (5th Cir. 2022) and United States v. Grogan, 977 F.3d 348 (5th Cir. 2020)
These cases supply the review framework when no objection was made below. Under United States v. Prado, review depends on whether the defendant had an opportunity to object at sentencing; if yes, plain error applies (citing United States v. Grogan).
The majority uses this to apply plain-error review because the conditions appeared in the PSR, the defense had it before sentencing, and Villafana-Mondragon filed a statement of no objection.
Grogan is also later used substantively: it lists multiple points at which a defendant “could have objected” (before the hearing, when asked about PSR objections, when the PSR is adopted, or when conditions are pronounced). The majority analogizes Villafana-Mondragon’s silence to the Grogan scenario.
3) United States v. Bloch, 825 F.3d 862 (7th Cir. 2016)
The opinion invokes United States v. Bloch through Diggles to justify why PSR-based notice is superior to first-time oral recitation at the hearing: defendants receiving PSR notice have “far more opportunity to review and consider objections.” This supports the majority’s acceptance of PSR adoption as not merely permissible, but practically sound.
4) Federal Rule of Criminal Procedure 32(i)(1)(A), United States v. Esparza-Gonzalez, 268 F.3d 272 (5th Cir. 2001), and United States v. Victoria, 877 F.2d 338 (5th Cir. 1989)
Rule 32(i)(1)(A) requires the court to “verify that the defendant and the defendant's attorney have read and discussed the presentence report and any addendum.”
The majority relies on United States v. Esparza-Gonzalez (quoting United States v. Victoria) for a pragmatic approach: the court may “draw reasonable inferences from court documents, the defendant's statements, and counsel's statements” to determine whether the defendant was given an opportunity to read the PSR with counsel. Importantly, Esparza-Gonzalez also rejects an “absolute requirement” that the judge “specifically ... ask a defendant whether he has read the [PSR].”
This line of cases is the majority’s answer to Villafana-Mondragon’s core demand for an explicit question directed to him personally.
5) United States v. Baxter, 150 F.4th 386 (5th Cir. 2025), United States v. Quezada-Atayde, 148 F.4th 360 (5th Cir. 2025), and United States v. Martinez-Rivera, No. 24-20031, 2025 WL 985711 (5th Cir. Apr. 2, 2025) (per curiam)
These authorities map an intra-circuit uncertainty: whether Rule 32 verification is part of the Diggles pronouncement analysis.
- United States v. Baxter and United States v. Quezada-Atayde are cited as decisions that have assumed (in dicta) that Rule 32 verification matters to the Diggles inquiry.
- United States v. Martinez-Rivera is cited for a contrary view (also unpublished): Diggles “does not state” that a Rule 32 lapse itself “creates a conflict” between oral pronouncement and written judgment.
The majority declines to resolve that conceptual question because it finds Rule 32 satisfied on this record “even assuming” it is required.
6) United States v. Duruisseau, No. 20-30649, 2021 WL 5778463 (5th Cir. Dec. 6, 2021) (per curiam) and United States v. Huerta, 994 F.3d 711 (5th Cir. 2021)
United States v. Duruisseau is invoked to show the Fifth Circuit has already applied the “no absolute requirement” principle in the Diggles context.
United States v. Huerta reinforces the notice rationale: when a PSR recommends special conditions, the defendant has “ample opportunity” to review them.
7) Standing Orders and United States v. Baez-Adriano, 74 F.4th 292 (5th Cir. 2023)
The majority adds an additional notice channel: the district’s General Order No. 2017-1 contained the same conditions. Relying on Diggles and United States v. Baez-Adriano, the majority explains that a standing order can provide advance notice like a PSR, and when a standing order matches the written judgment, PSR inclusion/exclusion may be “irrelevant.” This further undercuts any claim of surprise.
8) Unpublished cases: United States v. Rivera-Hernandez, No. 25-20022, 2025 WL 3034703 (5th Cir. Oct. 30, 2025) (per curiam) and United States v. Green, No. 24-30608, 2025 WL 1735720 (5th Cir. June 23, 2025) (per curiam)
The majority cites these as examples of decisions that assumed Rule 32 verification might matter to the Diggles framework. The dissent, by contrast, leans on Green and analogizes to Rivera-Hernandez to argue that counsel’s “implicit” assurance is not enough and that failure to confirm PSR review eliminates the “opportunity to object,” triggering abuse-of-discretion review.
B. Legal Reasoning
1) Standard of review: plain error because notice and opportunity existed
Applying Prado, the majority holds plain-error review governs because Villafana-Mondragon had the PSR in advance, filed a no-objection statement, heard repeated references to the PSR at the hearing, and still did not object. The court treats the PSR’s inclusion of the conditions as decisive proof of “opportunity to object.”
2) Pronouncement satisfied by oral adoption of PSR appendix
On the merits, the majority reads Diggles to allow (and prefer) oral adoption of a written list—especially the PSR. It finds the district judge’s statement that Villafana-Mondragon “shall comply with the additional conditions as noted in the appendix of the [PSR]” is a valid pronouncement, because the written judgment contained the “exact conditions from the PSR Appendix.”
3) No rigid requirement to ask the defendant directly about PSR review
The defense’s key move was to convert Diggles’s discussion of Rule 32 into a mandatory “extra step”: the judge must expressly confirm with the defendant that he reviewed the PSR before PSR adoption can constitute pronouncement.
The majority rejects that as too formalistic, relying on Esparza-Gonzalez/Victoria: Rule 32 does not require the judge to “specifically ... ask a defendant whether he has read the PSR.” Instead, courts may infer compliance from the record.
On this record, the majority identifies multiple inferential indicators:
- Defense had the PSR for at least a month.
- No objections were filed.
- The court announced it reviewed the PSR and “statement[s] of no objection.”
- The court asked counsel whether she “go[ne] over” with Villafana-Mondragon the fact that nobody objected to the PSR; counsel said “Yes.”
- Counsel engaged the PSR at sentencing (confirming facts, correcting PSR-based arguments).
Given these cues, the majority finds no error “plain or otherwise.”
4) The dissent’s competing rule: explicit confirmation is a prerequisite to notice and opportunity
Judge Douglas’s dissent reads Diggles to require that the court “ensure ‘the defendant confirms review of the PSR’” before proceeding. Under that view, without an on-the-record confirmation, the defendant lacks notice, thus lacks an opportunity to object, and abuse-of-discretion (not plain-error) review applies. The dissent views counsel’s statement as inadequate “implicit confirmation” and emphasizes a distinction between whether counsel reviewed the PSR and whether the defendant did.
The majority’s approach can be understood as choosing a functional, inference-based Rule 32 compliance standard, whereas the dissent adopts a more formal, defendant-centered colloquy requirement as a prerequisite to treating PSR adoption as a valid pronouncement mechanism.
C. Impact
Practically, the decision strengthens (at least within Fifth Circuit panels following this approach) the reliability of PSR-appendix adoption as a pronouncement method under Diggles, and it reduces the litigation leverage of arguments demanding a verbatim, defendant-directed PSR review colloquy.
Key likely effects:
- Sentencing practice: District courts can feel more secure that oral adoption of PSR conditions—paired with typical record signals (no objections, counsel acknowledgments, PSR-based advocacy)—will satisfy both Diggles pronouncement and Rule 32 verification.
- Appellate framing: Defendants who had the PSR in advance and did not object will face a steep uphill climb under plain-error review, especially where the judgment tracks the PSR appendix.
- Ongoing fault line: The dissent highlights an unresolved interpretive tension: whether Diggles effectively constitutionalizes or elevates Rule 32 verification into an express, defendant-confirmation prerequisite for PSR adoption. That question may recur, particularly where the record has fewer inferential markers than here.
- Standing orders: By reiterating that standing orders can supply notice (and sometimes render PSR inclusion “irrelevant” when matched), the opinion further equips district courts to defend conditions against “lack of notice” challenges.
4. Complex Concepts Simplified
Discretionary vs. mandatory supervised-release conditions
Mandatory conditions are imposed by statute and need not be “pronounced” the same way. Discretionary conditions (under 18 U.S.C. § 3583(d)) are chosen by the judge and must be pronounced so the defendant can hear them and object.
“Pronouncement” and “oral adoption” under Diggles
Pronouncement usually means the judge says the conditions at sentencing. But Diggles allows the judge to pronounce by referencing and adopting a written list—commonly the PSR (including an appendix of conditions)—so long as the defendant had notice and an opportunity to object.
Rule 32(i)(1)(A) verification
Rule 32 requires the court to “verify” that the defendant and counsel read and discussed the PSR. Fifth Circuit precedent allows verification to be shown by reasonable inferences from the record; it does not require a specific “Have you read it?” question in every case.
Plain error vs. abuse of discretion
If the defendant had notice and a chance to object but stayed silent, appellate review is typically plain error (harder to win). If the defendant lacked a meaningful chance to object, review can be abuse of discretion (easier to win). The dissent would treat lack of explicit PSR-review confirmation as eliminating the chance to object.
5. Conclusion
United States v. Villafana-Mondragon reinforces a practical rule in Fifth Circuit sentencing: a district court may validly pronounce discretionary supervised-release conditions by orally adopting the PSR appendix, and it need not conduct an express, defendant-directed colloquy confirming PSR review so long as the record supports a reasonable inference that the defendant had (and used) the opportunity to review the PSR with counsel.
The dissent underscores a continuing interpretive tension about how strictly Diggles ties pronouncement to Rule 32 verification. But on this record—PSR notice, no objections, counsel’s on-the-record acknowledgment, and PSR-based advocacy—the majority finds no pronouncement defect and affirms the sentence.