Second Circuit (en banc) Overrules Truscello: All Non‑Mandatory Supervised‑Release Conditions Must Be Pronounced at Sentencing

Second Circuit (en banc) Overrules Truscello: All Non‑Mandatory Supervised‑Release Conditions Must Be Pronounced at Sentencing

Introduction

In United States v. Maiorana, the U.S. Court of Appeals for the Second Circuit, sitting en banc, addressed a recurring and practically significant question in federal sentencing: must a district court orally pronounce all the non‑mandatory conditions of supervised release at the sentencing hearing, or may it add them later in the written judgment? Overruling its 1999 decision in United States v. Truscello, the court held that a defendant’s constitutional right to be present at sentencing requires the court to announce all non‑mandatory (discretionary) supervised‑release conditions— including those labeled “standard” in U.S.S.G. §5D1.3(c)—in open court, or to specifically incorporate them by reference to a written document made available to the defendant before sentencing.

The case arises from the sentencing of Brian Maiorana in the Eastern District of New York (Block, J.). The district court imposed seven special conditions in open court, but later added thirteen “standard” discretionary conditions only in the written judgment and, in one respect, contradicted its oral pronouncement by requiring payment for mental health treatment. On appeal, and after full en banc briefing that attracted civil-liberties and defense‑bar amici, the court vacated the thirteen discretionary conditions and the payment term and remanded.

The decision reorients Second Circuit practice to align with an emerging nationwide consensus and refocuses sentencing on the constitutional right to presence and the practical opportunity to object. It has immediate implications for sentencing procedure, probation practice, and appellate review in the Circuit.

Summary of the Judgment

  • The Second Circuit, en banc, overruled United States v. Truscello (1999) and held that a district court must pronounce in the defendant’s presence all non‑mandatory (discretionary) supervised‑release conditions, including the “standard” conditions listed in U.S.S.G. §5D1.3(c). If not pronounced, they may not be added later in the written judgment.
  • Mandatory conditions required by 18 U.S.C. §3583(d) need not be pronounced; discretionary conditions must be.
  • Pronouncement can be satisfied by either:
    • Expressly stating the conditions on the record, or
    • Specifically incorporating by reference particular conditions set forth in a written source that was made available to the defendant before sentencing (e.g., the PSR, the Sentencing Guidelines, or a court‑adopted notice/standing order).
  • Standard of review: de novo, because the defendant had no notice or opportunity to object at sentencing.
  • Remedy: The court vacated (a) the thirteen discretionary “standard” conditions added only in the written judgment and (b) the payment requirement for mental health treatment that conflicted with the oral sentence. Limited remand was ordered with instructions to either:
    • Convene a hearing and pronounce or properly incorporate any discretionary conditions it intends to impose, or
    • Strike them without further hearing.
    The defendant may waive a hearing.
  • Prospective application: The new rule applies to future cases and those on direct review; it does not apply retroactively on collateral review.

Case Background

Maiorana pleaded guilty to possessing a firearm and ammunition after a felony conviction (18 U.S.C. §922(g)(1)). The PSR recommended two years of supervised release with seven special conditions, including a mental‑health evaluation and treatment if necessary (with a cost‑sharing component). Neither party’s sentencing submission addressed supervised‑release conditions, and the PSR did not list any “standard” conditions.

At sentencing, the district court imposed 36 months’ imprisonment and three years’ supervised release. It orally imposed the seven special conditions but waived any requirement that Maiorana contribute to treatment costs. The court said there would be unspecified “general conditions of supervised release” to be included in the judgment but provided no details.

The written judgment added:

  • Four mandatory conditions under §3583(d),
  • Thirteen discretionary conditions substantially mirroring the “standard” conditions in U.S.S.G. §5D1.3(c), and
  • The seven special conditions, but now including the previously waived payment term for mental health treatment.

The parties agreed on appeal that the payment term had to be removed because it contradicted the oral pronouncement. The principal dispute was whether the court could add the thirteen standard conditions post‑hearing. The Second Circuit said no.

Analysis

Precedents Cited and Their Influence

  • Second Circuit pronouncement rule:
    • United States v. Rosario (2004); United States v. Handakas (2003); United States v. A‑Abras Inc. (1999): Oral pronouncement controls over the written judgment because the defendant is present at oral sentencing but not at entry of judgment.
    • United States v. Washington (2018); United States v. Green (2010); United States v. Matta (2015): De novo review where the defendant lacked notice and opportunity to object to a term added after sentencing; right to be present informs review.
    • United States v. Agard (1996); United States v. Reiter (1990); United States v. Arrous (2003): The right to be present at sentencing is grounded in the Fifth Amendment and codified in Fed. R. Crim. P. 43.
    • United States v. Thomas (2002) and progeny: Earlier decisions that had expanded Truscello by treating certain discretionary conditions as implicit; the en banc opinion recognizes the confusion this created and corrects course.
  • Truscello as an outlier:
    • United States v. Truscello (2d Cir. 1999): Previously allowed courts to add “standard” discretionary conditions after sentencing because they were viewed as necessary to effect supervised release. Maiorana overrules this holding.
  • National consensus requiring pronouncement of discretionary conditions:
    • United States v. Diggles (5th Cir. 2020) (en banc): Return to first principles—if discretionary, the condition must be pronounced to permit objection.
    • United States v. Montoya (9th Cir. 2023) (en banc): Overruled prior Ninth Circuit law and required pronouncement of non‑mandatory conditions on due process grounds.
    • United States v. Rogers (4th Cir. 2020); United States v. Hayden (6th Cir. 2024); United States v. Anstice (7th Cir. 2019); United States v. Walker (8th Cir. 2023); United States v. Geddes (10th Cir. 2023); United States v. Rodriguez (11th Cir. 2023); United States v. Matthews (D.C. Cir. 2022): Require oral pronouncement (or proper incorporation) of discretionary conditions.
  • Opportunity to object as a due process value:
    • Kentucky v. Stincer (U.S. 1987): A defendant must be present at critical stages when presence contributes to fairness.
    • The en banc opinion places the pronouncement requirement squarely in that due‑process framework.
  • Remedial principles:
    • United States v. Peguero (2d Cir. 2022): When written judgment conflicts with oral sentence, oral controls and remand to conform is required.

Legal Reasoning

The majority re-centers the analysis on a constitutional right: presence at sentencing. Rule 43(a) and due process guarantee that right. The core of the pronouncement rule is ensuring the defendant hears the sentence, understands its “contours,” and has the real‑time opportunity to object and seek tailored conditions. That opportunity is meaningful for discretionary conditions, which “need not” be imposed and are therefore contestable.

Truscello had treated the “standard” conditions as implicit in supervised release because they were thought “necessary to effect its purpose.” The en banc court rejects that premise as incompatible with the statutory and Guidelines framework:

  • Congress itself distinguished between mandatory conditions (which the court “shall” impose) and other discretionary conditions (which the court “may” impose) in 18 U.S.C. §3583(d).
  • The Sentencing Commission’s policy statement in §5D1.3(c) “recommends” standard conditions; they are not binding and thus are not universal or automatic.
  • Labeling conditions “standard” does not transform them into mandatory features of every term of supervised release.

Accordingly, the constitutional right to be present turns on the mandatory/discretionary line—not on a court’s view of what seems administratively useful. The court holds:

  • Mandatory conditions: no pronouncement required (the rationale is that objections would ordinarily be futile because the court lacks discretion to omit them, although the opinion acknowledges a statutory waiver for drug testing and does not revisit that issue here).
  • Discretionary conditions (including all “standard” §5D1.3(c) conditions): must be pronounced, either by stating them on the record or by specifically incorporating a written list previously made available to the defendant (PSR, Guidelines, or a court‑adopted notice/standing order).

On standard of review, the court applies de novo review. Maiorana had no notice that the district court would add conditions not mentioned at sentencing; thus he had no meaningful chance to object. That aligns with Washington, Green, and Matta.

Applying these rules, the court vacates the unpronounced thirteen discretionary conditions and the mental‑health cost requirement that conflicted with the oral pronouncement. The court orders a limited remand: the district court may reimpose discretionary conditions only after pronouncement in Maiorana’s presence (unless he waives a hearing).

The Dissent

Judge Menashi dissents, arguing that the majority imposes a “robotic” pronouncement requirement contrary to longstanding Second Circuit practice. He contends:

  • The court’s default understanding—since Truscello—that “supervised release” presumptively includes “standard” conditions is workable, widely understood, and imposes no constitutional unfairness because defendants can object if they seek a departure from those default conditions.
  • Mandatory conditions themselves sometimes allow for modification (e.g., drug testing), undercutting the majority’s “futility” rationale for exempting them from pronouncement while requiring pronouncement of standard conditions.
  • The national “consensus” the majority cites is not uniform; and other circuits vary in how they allow incorporation by reference and whether reasons must be given for standard conditions.
  • Stare decisis, reliance, and administrative workability counsel against upending Truscello after 26 years; the change will result in unnecessary remands to confirm what everyone already understood.

The dissent also warns the majority’s framing might invite arguments that standard conditions require individualized explanation, potentially destabilizing settled Second Circuit law that has presumed their suitability in all cases.

Impact

Maiorana effects a procedural recalibration rather than a substantive redefinition of which conditions are permissible. It mandates transparency and real‑time notice for all non‑mandatory conditions, including the ubiquitous “standard” conditions.

  • For district courts:
    • Build pronouncement into the sentencing script for discretionary conditions. A simple and sufficient formulation is to state: “The court imposes the discretionary ‘standard’ conditions of supervised release listed in U.S.S.G. §5D1.3(c), as set forth in and made available through the PSR [or a standing order],” or to read the conditions.
    • Use incorporation by reference thoughtfully. The written source must be “made available to the defendant” before sentencing (e.g., the PSR provided under Rule 32; the Guidelines text; a publicly posted and noticed standing order).
    • Best practice: ensure all proposed discretionary conditions—standard and special—appear in the PSR or an addendum, and verify under Rule 32(i)(1)(A) that the defendant reviewed them.
    • Do not rely on the written judgment to add terms not pronounced. Oral pronouncement controls; discrepancies must be corrected on remand.
    • Limited remands are preferred when only unpronounced conditions are at issue; a full resentencing is not required.
  • For defense counsel:
    • Scrutinize the PSR for all proposed discretionary conditions and lodge objections in writing and at the hearing.
    • At sentencing, ensure the court either reads or clearly incorporates by reference any discretionary conditions it intends to impose; ask for clarification if the record is ambiguous.
    • Preserve objections to discretionary conditions on the ground that they are not “reasonably necessary” and are overbroad under §3583(d)(2).
  • For probation offices:
    • Include a complete list of proposed discretionary conditions in the PSR to facilitate notice and preserve a clear record.
    • Coordinate with the court to ensure any court‑adopted notices or standing orders are current, accessible, and referenced on the record.
  • For appellate practice:
    • Direct appeals: Defendants who did not have notice of discretionary conditions added only in the written judgment are entitled to de novo review and, typically, a limited remand.
    • Collateral review: The new pronouncement rule is not retroactive on collateral review.
  • System‑wide alignment:
    • The Second Circuit now aligns with an extensive body of circuit authority requiring pronouncement of discretionary conditions. The decision improves uniformity and predictability in federal sentencing.

Complex Concepts Simplified

  • Right to be present at sentencing: A constitutional and rule‑based guarantee that the defendant hears the sentence and can speak or object. It ensures fairness and transparency.
  • Pronouncement vs. written judgment: The sentence announced in open court governs; the written judgment cannot add new terms or contradict the oral sentence. If they conflict, the oral pronouncement controls.
  • Mandatory vs. discretionary conditions:
    • Mandatory conditions are required by statute (18 U.S.C. §3583(d)), such as obeying the law and drug testing (subject to limited statutory waiver). Courts need not pronounce them.
    • Discretionary conditions include “standard” conditions in U.S.S.G. §5D1.3(c) and case‑specific “special” conditions. Because they are optional, they must be pronounced or properly incorporated at sentencing.
  • “Standard” conditions: A set of recommended (not mandatory) conditions enumerated in the Sentencing Guidelines (e.g., regular reporting to probation, truthful answers, notice of residence/employment changes). They are widely used but still discretionary.
  • Incorporation by reference: A court can satisfy pronouncement by expressly adopting a specific written list (e.g., “the §5D1.3(c) standard conditions as listed in the PSR”), provided the defendant had the document beforehand.
  • Stare decisis and en banc review: The court, sitting en banc, can revisit and overrule its own precedent (here, Truscello) when it conflicts with constitutional principles or broader legal developments.
  • Retroactivity: New rules of criminal procedure generally apply to pending and future cases on direct review, but not to cases already final on collateral review.

Practical Takeaways and Open Questions

  • Pronounce all discretionary conditions. The days of silently adding “standard” conditions in the written judgment are over.
  • Use the PSR as the vehicle for notice. Listing all proposed discretionary conditions in the PSR is the surest way to demonstrate that conditions were “made available” to the defendant.
  • Incorporation formula. A one‑sentence incorporation—identifying the precise written source—will usually suffice and avoids reading conditions verbatim.
  • Oral/written congruence. Ensure the written judgment mirrors the oral sentence; any discrepancy will be corrected on appeal with oral controlling.
  • Open issues to watch:
    • Scope of “made available”: The opinion names the PSR, the Guidelines, and a “notice adopted by the court.” Future cases may refine what suffices (e.g., standing orders, timing, and accessibility).
    • Explanations for “standard” conditions: Maiorana imposes a pronouncement requirement, not an explanation requirement. Some circuits demand individualized reasoning for certain discretionary conditions; the Second Circuit’s opinion leaves intact its existing law presuming the suitability of standard conditions, but practitioners may test the boundary in particular cases (especially where a standard condition implicates constitutional or uniquely sensitive interests).

Conclusion

United States v. Maiorana marks a significant procedural correction in the Second Circuit’s sentencing law. By overruling Truscello, the court reaffirms that the right to be present at sentencing entails notice and a contemporaneous opportunity to object to every non‑mandatory condition of supervised release. The ruling brings the Circuit into alignment with a broad national trend, enhances transparency, and promotes the individualized tailoring Congress envisioned in §3583(d).

Practically, the decision will modestly change sentencing routines—judges will pronounce or incorporate discretionary conditions on the record, probation will front‑load proposed terms in the PSR, and defense counsel will be better positioned to make timely and focused objections. Conceptually, it restores the primacy of the oral sentence and safeguards defendants’ participatory rights at the critical moment when liberty‑restraining conditions are imposed. In the larger arc of supervised‑release jurisprudence, Maiorana is an important affirmation that procedural fairness at sentencing is not a ritual; it is a constitutional guarantee.

Case Details

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

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