United States v. Brazoban: Silence at Sentencing Is Not Waiver and Typographical Corrections to Supervised-Release Conditions Are Permissible Clarifications

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I. Introduction

United States v. Brazoban arises from a challenge to the procedure by which a district court imposed special conditions of supervised release and subsequently corrected typographical errors in the written judgment. The case sits at the intersection of:

• The constitutional and Rule 43 right of a defendant to be present at sentencing;
• The requirement that sentences be orally pronounced in open court;
• The permissible use of written lists of supervised-release conditions incorporated by reference at sentencing; and
• The distinction between waiver and forfeiture of appellate claims.

Although decided by summary order and expressly without precedential effect, the Second Circuit’s reasoning concretely applies and clarifies its recent en banc decision in United States v. Maiorana, 153 F.4th 306 (2d Cir. 2025), and a line of cases dealing with discrepancies between oral pronouncements of sentence and written judgments. It also refines how courts should treat defense counsel’s silence at sentencing: silence is not automatically treated as an intentional waiver, and typographical corrections in the written judgment do not create a constitutional problem where they merely clarify or correct surplusage.

The decision therefore provides useful—albeit non‑binding—guidance to district courts and practitioners on:

• How to validly impose special supervised-release conditions by reference to written documents;
• What kinds of discrepancies between oral and written sentences are “substantive”; and
• When a defendant’s failure to object at sentencing will or will not constitute an intentional waiver on appeal.

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II. Background of the Case

A. Parties and Charges

The defendant, Christian Brazoban, also known as “Bison,” was charged in the Eastern District of New York with distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2). He entered a guilty plea on January 31, 2024, pursuant to a plea agreement.

The United States was represented by the U.S. Attorney’s Office for the Eastern District of New York. Brazoban was represented by retained counsel.

B. Sentencing Proceedings

Prior to sentencing, the district judge (Judge Azrack) provided the defense with a three‑page memorandum listing the special conditions of supervised release she intended to impose. That memorandum, however, contained two typographical errors:

1. In Special Condition 6, two lines were inadvertently repeated—pure duplication.
2. In Special Condition 8, one line was omitted, referring to:
   • Failure to provide certain information as potential grounds for revocation; and
   • Requirement that Brazoban permit Probation to access and search accounts using his credentials.

Importantly, the Presentence Investigation Report (PSR) contained the same list of special conditions but without these typographical errors. Defense counsel confirmed at sentencing that he had reviewed both the PSR and the special conditions with Brazoban.

On September 25, 2024, the district court sentenced Brazoban to:

• 151 months’ imprisonment, and
• five years’ supervised release.

At sentencing, the court stated on the record that it would impose the special conditions “set forth in the memorandum” that had been given to Brazoban. The judge confirmed:

• That counsel had reviewed the conditions with Brazoban;
• That Brazoban understood the conditions; and
• That he had no questions.

The court then entered a written judgment that reproduced the same conditions as those intended in the memorandum, but without the two typographical mistakes. In substance, the written judgment matched the PSR’s conditions, not the flawed memorandum.

C. The Appeal

On appeal, Brazoban argued that:

1. The district court violated his constitutional and Rule 43 right to be present at sentencing by failing to orally pronounce the special conditions of supervised release in detail, instead referring only to the memorandum.
2. The written judgment’s corrected list of conditions improperly differed from what was orally imposed at sentencing, because the district court had “relied on” the flawed memorandum in its oral pronouncement.
3. Given his asserted learning deficiencies, the district court’s procedure was especially inadequate to ensure that he truly understood the conditions.

The government responded that:

• Brazoban had waived any challenge by failing to object at sentencing when given the opportunity; and
• In any event, there was no impermissible discrepancy between the oral pronouncement and the written judgment.

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III. Summary of the Second Circuit’s Decision

The Second Circuit affirmed the judgment of the district court. Its principal conclusions were:

1. No Waiver from Mere Silence: Brazoban did not intentionally waive his challenge at sentencing. His counsel’s failure to object when asked if there was “anything else with the special conditions” was, at most, a forfeiture (i.e., a failure to timely raise an objection), not a deliberate relinquishment of a known right.
2. Valid Incorporation of Written Conditions: Under United States v. Maiorana, the district court was permitted to incorporate by reference written special conditions that had been provided to the defendant and reviewed with him, without reading each condition verbatim in open court.
3. No Substantive Discrepancy: The corrections in the written judgment—eliminating repeated lines and adding clarifying language already reflected in the PSR—did not create a “substantive discrepancy” between the oral sentence and the written judgment. They did not impose a more burdensome punishment or alter the nature of the supervised release.
4. Standard of Review Immateral to Outcome: Whether reviewed for plain error or de novo, the challenge failed because the district court did not err in its pronouncement and documentation of the supervised-release conditions.

In sum, the Second Circuit held that:

• The procedure used to impose the supervised-release conditions was consistent with the constitutional right to be present at sentencing and the oral‑pronouncement rule; and
• The written judgment merely corrected typographical issues and clarified the conditions, in line with prior case law allowing such clarifications.

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IV. Precedents and Authorities Cited

A. Waiver vs. Forfeiture: Williams and Spruill

The court drew heavily on the distinction between waiver and forfeiture, as articulated in:

• United States v. Williams, 930 F.3d 44, 64‑65 (2d Cir. 2019); and
• United States v. Spruill, 808 F.3d 585, 596 (2d Cir. 2015).

These cases explain:

• True waiver occurs when a defendant intentionally relinquishes a known right. A waived claim is extinguished and is not reviewable on appeal.
• Forfeiture is a failure to make a timely objection, often due to oversight or mistake. Forfeited claims may still be reviewed (usually for plain error).

In Brazoban, the court emphasized:

“[A] defendant's intentional decision not to raise a claim in the district court extinguishes that claim on appeal, [but] an unintentional failure to raise a claim—‘in most instances due to mistake or oversight’—does not.” (quoting Williams and Spruill)

The panel found no affirmative indication that defense counsel intentionally acquiesced in the method of pronouncement or consciously abandoned any objection. Counsel’s simple failure to raise the issue in response to “[a]nything else with the special conditions” was treated as consistent with inadvertence.

B. Right to Presence and Oral Pronouncement: Maiorana, Rosado, and Rosario

The oral‑pronouncement requirement flows from:

• The Constitution’s guarantee of the right to be present at sentencing; and
• Federal Rule of Criminal Procedure 43(a)(3).

The court relied on its recent en banc and panel precedents:

• United States v. Maiorana, 153 F.4th 306 (2d Cir. 2025) (en banc);
• United States v. Rosado, 109 F.4th 120 (2d Cir. 2024); and
• United States v. Rosario, 386 F.3d 166 (2d Cir. 2004).

Those cases establish several core principles:

1. Sentencing in the Defendant’s Presence The defendant has a right to be physically present when the sentence is imposed.
2. Oral Pronouncement Controls Where there is a conflict between the oral sentence and the written judgment:

   “In the event of variation between an oral pronouncement of sentence and a subsequent written judgment, the oral pronouncement controls, and any burdensome punishments or restrictions added in the written judgment must be removed.” (Rosado, quoting Rosario)

3. Function of Oral Pronouncement The oral pronouncement must give the defendant and counsel an opportunity:

   “to obtain a clear understanding of the terms of the sentence and to object to or seek clarification of its components.” (Rosado)

Most importantly for this case, Maiorana held that a judge need not recite every condition of supervised release word‑for‑word, provided the court:

• Expressly adopts or incorporates by reference
• Particular conditions
• Which have been set forth in writing and made available to the defendant.

This is the key doctrinal hook that validates the district court’s method in Brazoban.

C. Standards of Review and “Substantive Discrepancy”: Robinson, Washington, Leavens, and Lewis

Several recent cases refine how appellate courts treat differences between oral and written sentences and the applicable standards of review:

• United States v. Robinson, 134 F.4th 104 (2d Cir. 2025);
• United States v. Washington, 904 F.3d 204 (2d Cir. 2018);
• United States v. Leavens, No. 23‑7993‑cr, 2025 WL 387810 (2d Cir. Feb. 4, 2025) (summary order); and
• United States v. Lewis, 125 F.4th 69 (2d Cir. 2025).

From these cases, the Brazoban panel draws several propositions:

1. Plain Error vs. De Novo Review As Robinson explains, if a defendant had notice that a supervised-release condition would be imposed and failed to object, appellate review is typically for plain error. Maiorana qualifies this: if the written judgment adds conditions that were never stated or clearly referenced by the district court, de novo review is appropriate, because the defendant had no opportunity to object.
2. Substantive vs. Non‑Substantive Differences Washington and Rosado limit relief to cases where there is a “substantive discrepancy”— that is, where the written judgment:
   • Imposes a more burdensome punishment; or
   • Materially alters the terms actually pronounced.
   Minor stylistic differences, rewordings, or clarifications are not enough. Leavens expressly notes that “minor stylistic differences” do not amount to a substantive discrepancy.
3. Affirmative Participation and Waiver Lewis involved a scenario where defense counsel affirmatively declined the opportunity to have a condition read aloud; such participation can support a finding of intentional waiver. In contrast, in Brazoban there was no such affirmative decision—merely silence.

These authorities collectively shape the analytical framework that the Second Circuit applies to Brazoban’s claims.

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V. The Court’s Legal Reasoning

A. No Intentional Waiver from Counsel’s Silence

The government argued that Brazoban’s failure to object when the court asked if there was “anything else with the special conditions” amounted to a waiver, foreclosing appellate review.

The panel rejected this, applying the principles from Williams and Spruill:

• There was no indication that counsel affirmatively agreed to the process or expressly disclaimed any objection, unlike in Leavens and Lewis.
• Counsel did not respond in a way that clearly signaled a strategic decision to forgo appellate review of the manner of pronouncement.
• It was at least plausible that counsel was simply unaware that an objection was available.

Therefore, the court treated the failure to object as, at most, a forfeiture, permitting appellate review under either de novo or plain‑error standards. The panel did not definitively resolve the standard of review because it found no error at all.

B. Compliance with the Oral‑Pronouncement Requirement

Turning to the merits, the court framed the relevant law:

• Defendants have the right to be present at sentencing under the Constitution and Rule 43(a)(3).
• This right generally requires that “the terms of a defendant’s sentence be orally pronounced.”
• The purpose is to ensure understanding and the opportunity to object or seek clarification.

The key doctrinal step is the application of Maiorana:

“[A] district court may ‘expressly adopt or specifically incorporate by reference particular conditions that have been set forth in writing and made available to the defendant,’ rather than ‘read the full text of every condition on the record.’”

The panel concluded that this is “precisely what the district court did here”:

1. The court provided a written memorandum listing the intended special conditions before sentencing.
2. At the hearing, the court expressly indicated it would impose those written conditions.
3. The court confirmed:
   • That counsel reviewed the conditions with Brazoban;
   • That he understood them; and
   • That he had no questions.
4. The same conditions (sans typographical errors) were also in the PSR, which had likewise been reviewed and referenced at sentencing.

As a result, the panel found that Brazoban had a real opportunity to:

• Understand the conditions; and
• Seek clarification or object.

The court explicitly held that he “was thus not deprived of the ‘opportunity to obtain a clear understanding of the terms of the sentence and to object to or seek clarification of its components.’”

C. Standard of Review: Plain Error vs. De Novo (Footnote Discussion)

In a detailed footnote, the panel discussed the interplay of standards of review:

• Under Robinson, when a defendant has notice that a condition will be imposed and fails to object, plain‑error review ordinarily applies.
• Under Maiorana, where conditions in the written judgment were never stated or clearly referenced in court, the defendant had no chance to object, so de novo review is appropriate.

Brazoban argued that:

• He had only “insufficient” notice (given his learning issues), not no notice; and
• That the conditions in the judgment differed from those in the memorandum.

The government urged plain‑error review. The panel sidestepped the precise choice, stating that “regardless of which standard of review applies, Brazoban’s challenge fails because the district court did not err.”

This implicitly underscores the court’s view that the district court’s procedure was not even close to the line of reversible error.

D. No “Substantive Discrepancy” Between Oral Sentence and Written Judgment

The crux of the appeal was whether the corrected written judgment impermissibly differed from the district court’s oral pronouncement. Under Rosado, Washington, and Robinson, the written judgment must yield to the oral sentence where the former:

• Imposes additional burdensome restrictions not in the oral pronouncement; or
• Otherwise substantively alters the defendant’s punishment.

The court carefully reviewed the two corrections:

1. Deletion of Repeated Lines (Special Condition 6) The written judgment removed two repeated lines that appeared in the memorandum. This was characterized as the elimination of “pure surplusage”—it did not change the meaning or scope of the condition.
2. Additions in Special Condition 8 The judgment added language specifying that:
   • Failure to provide certain information may be grounds for revocation of supervised release; and
   • Brazoban must permit Probation to access and search relevant accounts using his credentials.
   These lines were present in the PSR’s version of the conditions and reflected what the court intended to impose all along.

The panel emphasized several points:

• The written judgment did not impose a more burdensome punishment than that specified in the memorandum.
• The conditions in the written judgment matched those in the PSR, which had been reviewed with the defendant.
• Appellate precedents “explicitly permit modifications in the written judgment when they merely ‘clarify the terms of the spoken sentence.’” (quoting Rosado, reaffirmed in Robinson).

The court therefore held that correcting the typographical mistakes amounted to a permissible clarification, not a substantive modification:

“The district court's written judgment did just that—it reproduced the conditions set forth in the memorandum while correcting typographical errors. The written judgment did not impermissibly differ from the district court's oral pronouncement at sentencing.”

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VI. Impact and Practical Implications

Although United States v. Brazoban is a summary order and thus non‑precedential, it has important practical and persuasive value in several respects.

A. Sentencing Practice: Incorporating Written Supervised-Release Conditions

The decision reinforces and operationalizes Maiorana:

• District courts may validly incorporate by reference a written list of special conditions, rather than reading each condition onto the record.
• The procedural safeguards that matter are:
  • Pre‑hearing disclosure of the written conditions to the defense;
  • Clear indication on the record that the court is adopting those written conditions;
  • Confirmation by the court that counsel has reviewed the conditions with the defendant; and
  • Affirmative opportunity for the defendant to ask questions or lodge objections.

In this sense, Brazoban is a concrete illustration of what Maiorana expects sentencing judges to do when they use written condition lists. It suggests a best-practice template for district courts:

1. Provide written conditions (via a sentencing memo or PSR) in advance.
2. Explicitly state at sentencing that the court is imposing the conditions “as set forth in” that document.
3. Confirm on the record that the defendant and counsel have reviewed and understood the conditions, and invite questions.
4. Ensure that the written judgment matches the court’s intended conditions (e.g., as reflected in the PSR), except for purely typographical or clarifying corrections.

B. Written Judgment vs. Oral Pronouncement: Clarifications vs. Substantive Changes

For future litigants and courts, Brazoban sharpens the line between:

• Permissible corrections/clarifications in a written judgment (e.g., removal of duplication, conforming the text to the PSR, adding explicit language that merely restates or elucidates what was already imposed); and
• Impermissible, substantive additions that add new restrictions or make the sentence more onerous than what was pronounced in open court.

The case suggests that when the written judgment:

• Aligns with the PSR that was discussed at sentencing; and
• Removes typographical error or surplusage; or
• Includes clarifying language that is functionally inherent in the conditions already imposed,

such modifications will likely be deemed non‑substantive and therefore permissible. Conversely, if the written judgment introduces genuinely new obligations or tightens the restrictions, it risks running afoul of Rosado and Washington.

C. Waiver, Forfeiture, and Defense Strategy at Sentencing

For defense counsel, the decision serves as a caution and a partial safety net:

• Caution: Failing to object may still trigger plain‑error review, which is difficult for defendants to satisfy. Counsel should, as a matter of strategy, raise any concern about supervised-release conditions or the method of pronouncement on the record.
• Safety net: Merely remaining silent when asked a general question such as “anything else?” will not automatically be treated as an intentional waiver that extinguishes the claim entirely. Explicit acquiescence, as in Lewis, is more likely to be deemed waiver.

This gives defense counsel a clearer understanding of the consequences of their in‑court statements—or lack thereof— concerning sentencing conditions.

D. Defendants with Learning or Cognitive Limitations

Brazoban argued that his learning deficiencies made it especially important for the court to verbally explain the conditions. The panel did not create any special doctrinal rule for such defendants but sent a signal:

• So long as the record reflects that:
  • The defendant had the written conditions;
  • Counsel reviewed them with him; and
  • The court directly confirmed understanding and invited questions,
  the procedure will typically satisfy the right‑to‑presence and oral‑pronouncement requirements, even for defendants with asserted cognitive limitations.

That said, as a matter of prudent practice, district courts may choose to take additional steps— such as summarizing key conditions orally or using simpler language—when there is evidence of comprehension difficulties. But Brazoban confirms that such enhancements are not constitutionally mandated so long as the core procedural safeguards are met.

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VII. Clarifying Key Legal Concepts

A. Supervised Release and Special Conditions

Supervised release is a period of community supervision that follows a term of imprisonment. It is not parole; it is a distinct part of the sentence imposed by the judge at the time of sentencing.

• Standard conditions are generally applicable to most defendants (e.g., reporting to Probation, not committing new crimes).
• Special conditions are tailored to the specific offender or offense (e.g., sex‑offender treatment, computer‑use restrictions, search conditions).

In sex‑offense and child‑pornography cases, special conditions frequently regulate:

• Use of computers and internet‑enabled devices;
• Access to social media and online accounts;
• Submission of passwords or credentials to Probation; and
• Search of electronic devices and online accounts for compliance monitoring.

B. Oral Pronouncement vs. Written Judgment

At sentencing:

• The judge orally pronounces the sentence in the defendant’s presence.
• Afterward, the court issues a written judgment that should accurately reflect what was pronounced.

If there is a conflict:

• The oral pronouncement controls because that is what the defendant heard and had the opportunity to understand and challenge.
• The written judgment cannot validly add new, more onerous conditions that were never pronounced or clearly referenced.

C. Typographical Error vs. Substantive Change

A typographical error is a mistake in spelling, duplication, omission, or formatting that does not change the legal substance of a provision. For example:

• Repeating a line twice; or
• Omitting a sentence that is nonetheless reflected elsewhere in the record in a way that clearly shows the court’s intended meaning.

A substantive change is one that:

• Adds new restrictions or duties;
• Increases the severity of a condition; or
• Alters the scope or nature of the supervised release.

In Brazoban, the Second Circuit found that the written judgment’s corrections were typographical/clarifying, not substantive.

D. Waiver, Forfeiture, and Plain Error

• Waiver is the intentional relinquishment of a known right. A waived issue is generally not reviewable at all on appeal.
• Forfeiture is a failure to timely assert a right, usually by oversight or neglect. Forfeited issues may be reviewed for plain error.
• Plain-error review requires the appellant to show:
  1. An error;
  2. That is clear or obvious;
  3. That affects substantial rights (typically, the outcome); and
  4. That seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Brazoban situates his failure to object in the forfeiture category, not waiver.

E. Presentence Investigation Report (PSR)

A PSR is prepared by the Probation Office before sentencing and includes:

• The defendant’s background;
• The offense conduct;
• Guidelines calculations; and
• Recommended conditions of supervised release.

Counsel and the defendant are expected to review the PSR, and the judge typically references it at sentencing. Where the PSR lists specific conditions, and the court clearly embraces them, those conditions can serve as a reference point to evaluate whether the written judgment truly deviates from the sentence imposed.

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VIII. Conclusion

United States v. Brazoban affirms a child‑pornography sentence and, more importantly for doctrinal purposes, illustrates how the Second Circuit currently understands:

• The oral‑pronouncement requirement under Rule 43 and the Constitution;
• The use of written, pre‑disclosed supervised-release conditions adopted by reference at sentencing;
• The distinction between substantive and non‑substantive discrepancies between oral and written sentences; and
• The critical separation of waiver from forfeiture in sentencing appeals.

While the decision is formally non‑precedential, it robustly applies and harmonizes prior binding precedents such as Maiorana, Rosado, Rosario, Williams, and Spruill. It confirms that:

1. A defendant’s silence at sentencing, without more, typically amounts to forfeiture, not intentional waiver, preserving at least limited appellate review.
2. District courts may satisfy the oral‑pronouncement requirement by clearly incorporating written conditions that the defendant has seen and discussed with counsel, so long as they provide a real opportunity for questions or objections.
3. Written judgments may correct typographical errors and clarify the conditions imposed, without offending the oral‑sentence rule, provided they do not add new, burdensome restrictions that substantively change the sentence.

In the broader supervised‑release jurisprudence of the Second Circuit, Brazoban thus functions as a practical guide: it shows how sentencing courts can efficiently impose complex supervised‑release regimes while respecting defendants’ rights, and it illustrates the limits of appellate relief where the alleged discrepancies are merely technical rather than substantive.