United States v. Hill: Invited Error after Erlinger and Due Process Limits on Unpronounced “Standard” Conditions of Supervised Release

United States v. Hill: Invited Error after Erlinger and Due Process Limits on Unpronounced “Standard” Conditions of Supervised Release

Introduction

The Eleventh Circuit’s unpublished decision in United States v. Troy M. Hill, No. 23‑11756 (11th Cir. Dec. 18, 2025), sits at the intersection of three rapidly evolving areas of federal criminal law:

  • The Armed Career Criminal Act (ACCA) and, in particular, the Supreme Court’s recent decision in Erlinger v. United States requiring a jury to decide whether prior convictions were committed on “different occasions”;
  • The definition of “serious drug offense” under the ACCA in light of Brown v. United States (affirming United States v. Jackson (“Jackson II”)) and Eleventh Circuit cases on Florida cocaine statutes and stereoisomers; and
  • Due process limits on the imposition of supervised release conditions, especially so‑called “standard conditions,” following United States v. Hayden and United States v. Rodriguez.

Troy Hill was convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and sentenced under the ACCA, 18 U.S.C. § 924(e), to 300 months’ imprisonment and five years of supervised release. On appeal, he challenged:

  1. The judge’s resolution—rather than the jury’s—of whether his prior convictions were committed on different occasions for ACCA purposes;
  2. Whether his Florida cocaine convictions qualified as ACCA “serious drug offenses”; and
  3. The district court’s failure to orally pronounce at sentencing all of the supervised release conditions later contained in the written judgment.

The Eleventh Circuit affirmed the ACCA enhancement but vacated thirteen discretionary supervised release conditions that were never validly pronounced, remanding for resentencing limited to those conditions. Along the way, the panel clarified the operation of the invited error doctrine after Erlinger, reinforced the demanding “realistic probability” requirement for categorical‑approach overbreadth challenges to Florida cocaine statutes, and applied due process principles to reject an attempt to incorporate by reference a non‑existent set of district “standard conditions” of supervision.

Note: Although designated “Not for publication” and therefore non‑precedential under Eleventh Circuit rules, Hill is instructive and likely to be cited as persuasive authority in future litigation.

Factual and Procedural Background

A. The Indictment and ACCA Allegations

A federal grand jury originally indicted Hill on three counts:

  1. Possession with intent to distribute alpha‑Pyrrolidinoisohexanophenone (“molly”), 21 U.S.C. §§ 841(a)(1) & (b)(1)(C);
  2. Possessing a firearm in furtherance of a drug trafficking crime, 18 U.S.C. § 924(a)(1)(A)(i); and
  3. Possessing a firearm as a convicted felon, 18 U.S.C. §§ 922(g)(1) & 924(e).

A superseding indictment then pared the case down to a single count of possession of a firearm as a convicted felon under §§ 922(g)(1) and 924(e). Crucially, the superseding indictment:

  • Listed seven prior Florida convictions, including violent and drug offenses; and
  • Contained a section titled “Enhanceable Prior Convictions,” alleging that before the federal firearm offense Hill had “at least three previous convictions for a violent felony, a serious drug offense, or both, committed on occasions different from one another.”

Hill acknowledged on the record that “separate occasion is what was added” in the superseding indictment, indicating he understood the ACCA “different occasions” allegation.

B. The “Different Occasions” Colloquy and Waiver of Jury Determination

Hill initially represented himself pro se with standby counsel. On the first day of trial, before he elected to proceed with counsel, the government offered to stipulate that his predicate offenses had occurred on different occasions. The district judge engaged Hill in a detailed colloquy explaining:

  • The ACCA enhancement and its impact on sentencing;
  • The requirement that predicate offenses be “committed on occasions different from one another”; and
  • That whether this “separate occasions” question had to be decided by a jury was not yet settled in the Eleventh Circuit.

The judge explicitly told Hill that:

  • If Hill asserted a right to have a jury decide the “different occasions” question, the court would submit it to the jury; but
  • If he did not assert that position, the court would decide the issue at sentencing.

After a pause to consult with standby counsel, Hill stated that he “stipulate[d]” to the separate occasions issue and, more importantly for appellate purposes, that he “[didn’t] want the jury to decide that.” The court confirmed that, in that event, it would determine at sentencing whether the prior convictions occurred on different occasions and whether they qualified as ACCA predicates.

Later that same day, Hill requested that standby counsel assume full representation; counsel tried the case, and the jury found Hill guilty on the § 922(g) count.

C. The Presentence Investigation Report and ACCA Enhancement

The Presentence Investigation Report (PSI) identified four prior Florida convictions as ACCA predicates:

  1. 1996 conviction for resisting an officer with violence (charged 1995), Fla. Stat. § 843.01;
  2. March 2006 conviction for sale or possession of cocaine with intent to sell within 1000 feet of a church (charged August 10, 2005), Fla. Stat. § 893.13(1)(e)1;
  3. May 2006 conviction for sale of cocaine and possession of cocaine with intent to sell or deliver (charged August 31, 2005), Fla. Stat. § 893.13(1)(a)1; and
  4. March 2016 conviction for possession of cocaine with intent to sell/manufacture/deliver and sale of a controlled substance (charged 2012), also under Fla. Stat. § 893.13(1)(a)1.

Relying on these convictions, the PSI:

  • Designated Hill an “armed career criminal” under the ACCA;
  • Calculated a base offense level of 24 for the § 922(g) offense;
  • Added:
    • +4 levels for possessing the firearm in connection with another felony (drug distribution),
    • +2 levels for creating a substantial risk of death or serious bodily injury during flight from law enforcement, and
    • +4 levels due to armed career criminal status;
  • Found a total offense level of 34 and criminal history category VI, producing a Guidelines range of 262–327 months and supervised release of two to five years.

On supervised release, the PSI’s “Recommended Conditions of Supervision” section:

  • Recommended that “any term of supervision be under the mandatory and standard conditions adopted for use in the Northern District of Florida,” citing an “Overview of Probation and Supervised Release Conditions” available at www.uscourts.gov; and
  • Specifically listed six “special conditions” (drug testing and treatment, mental health evaluation/treatment, financial disclosure, child‑support‑related cooperation, and search conditions).

D. Hill’s Objections Below

Hill filed multiple objections to the PSI. Two are central to the appeal:

  1. ACCA serious drug offenses and ioflupane. Hill argued that his Florida cocaine convictions were not “serious drug offenses” under the ACCA because, at the time of his state offenses, Florida’s definition of “cocaine” included ioflupane I‑123, a substance derived from cocaine. By contrast, the current federal controlled‑substance schedules exclude ioflupane. Applying the categorical approach and the “least culpable conduct” rule, he contended the court must assume his Florida convictions involved ioflupane, so they would not match the federal definition.

    Hill acknowledged the Eleventh Circuit’s superseding decision in United States v. Jackson (“Jackson II”), 55 F.4th 846 (11th Cir. 2022), aff’d sub nom. Brown v. United States, 602 U.S. 101 (2024), which held that courts look to the federal controlled‑substance schedules in effect at the time of the state conviction. But he argued Jackson II was wrongly decided, and that the earlier vacated panel opinion in Jackson I, 36 F.4th 1294 (11th Cir. 2022), had been right in treating the relevant federal schedules as those in effect at the time of the federal § 922(g) offense. Hill “adopt[ed] all arguments” raised by the defendant in Jackson.
  2. “Different occasions” and jury trial right. Hill also objected that a jury, not the judge, should determine whether his prior convictions were committed on different occasions for ACCA purposes, and he contended that any waiver of that right had been involuntary or uninformed.

The probation office maintained that its ACCA analysis was correct and did not alter the final PSI. The government submitted certified judgments and charging documents to prove that Hill’s predicate convictions occurred on separate occasions.

E. Sentencing and Supervised Release Pronouncement

At sentencing, Hill conceded—under controlling Jackson II—that his 2006 Florida cocaine convictions were ACCA predicates, but he continued to argue that the 2016 conviction did not qualify because by 2016 ioflupane had been removed from the federal schedules. The government responded that, under Jackson II/Brown, the relevant federal law is that “in effect at the time of the conviction,” meaning the law in effect in 2012 (when Hill committed the offense leading to the 2016 conviction), not 2016. The district court agreed.

The district court also:

  • Rejected Hill’s argument that a jury had to find the “different occasions” fact, holding there was no such requirement and, in any event, that Hill had knowingly and voluntarily waived any jury determination;
  • Found that the four identified offenses occurred on different occasions based on the submitted documents; and
  • Adopted the PSI’s Guidelines calculations (offense level 34, CHC VI, range 262–327 months) and imposed 300 months’ imprisonment and five years of supervised release.

On supervised release, the court stated:

  • “The supervised release conditions will be those set out in the presentence investigation report.”
  • “On supervised release [Hill] will be required to comply with the standard and mandatory conditions, as well as the specific conditions set out in the presentence investigation report.”

Defense counsel voiced no new objections beyond those previously raised. The written judgment, however, contained:

  • Seven “Mandatory Conditions”;
  • Thirteen “Standard Conditions of Supervision”; and
  • Six “Additional Supervised Release Terms” mirroring the PSI’s six “special conditions.”

Hill appealed, challenging the ACCA enhancement on two grounds and the supervised‑release conditions on a third.

Summary of the Eleventh Circuit’s Decision

The Eleventh Circuit panel (Judges Newsom, Grant, and Tjoflat, per curiam) ruled as follows:

  1. “Different occasions” factfinder (ACCA): While acknowledging the Supreme Court’s intervening decision in Erlinger v. United States, 602 U.S. 821 (2024), which holds that the Fifth and Sixth Amendments require a jury to decide whether prior convictions occurred on “different occasions,” the panel held that Hill’s claim was barred by the doctrine of invited error. Hill expressly told the district court he did not want the jury to decide the issue and stipulated to it being resolved by the judge. Because the law was “unsettled” at the time—not governed by settled precedent later overturned—the narrow change‑in‑law exception to invited error recognized in United States v. Duldulao, 87 F.4th 1239 (11th Cir. 2023), did not apply.
  2. Florida cocaine convictions as “serious drug offenses” (ACCA): Hill’s argument on appeal—that Florida’s cocaine definition is overbroad because it includes “nongeometric diastereomers” absent from the federal definition—was deemed unpreserved, as it differed from his ioflupane‑timing argument below. Applying plain‑error review, the panel held that Hill failed to show any error because he provided no evidence that such a cocaine stereoisomer actually exists, as required by the “realistic probability” standard in Chamu v. U.S. Attorney General, 23 F.4th 1325 (11th Cir. 2022). The ACCA enhancement thus stood.
  3. Supervised release conditions: The district court plainly erred by imposing thirteen discretionary “standard” conditions in the written judgment that it never validly pronounced at sentencing. The PSI purported to recommend “standard conditions adopted for use in the Northern District of Florida,” but no such district‑wide standard conditions existed. A general reference to a judiciary website did not cure the defect. Citing Hayden and Rodriguez, the panel held this omission violated Hill’s due process rights, vacated the thirteen “Standard Conditions of Supervision,” and remanded for resentencing limited to those conditions.

In short: the ACCA sentence was affirmed, but the supervised release component was reversed in part and remanded.

Key Precedents and Doctrinal Context

A. Erlinger, “Different Occasions,” and Invited Error

Under the ACCA, a § 922(g) defendant with three prior “violent felony” or “serious drug offense” convictions “committed on occasions different from one another” faces a 15‑year mandatory minimum and a higher statutory maximum. For years, courts debated whether the “different occasions” determination was for the judge or jury.

In Erlinger v. United States, 602 U.S. 821, 834–35 (2024), the Supreme Court held that:

  • The Fifth Amendment’s Due Process Clause and the Sixth Amendment’s jury‑trial right require that a jury find, beyond a reasonable doubt, that prior convictions were committed on different occasions; and
  • This finding is too fact‑intensive and too central to the sentencing range (affecting both minimum and maximum) to be made by a judge alone.

At the same time, Erlinger, together with Eleventh Circuit precedent like United States v. Rivers, 134 F.4th 1292, 1305 (11th Cir. 2025), treats judge‑made different‑occasions findings as generally subject to harmless‑error review, not automatic reversal as “structural error.” The standard, from Neder v. United States, 527 U.S. 1, 18 (1999), asks whether it is “clear beyond a reasonable doubt” that a rational jury would have found the element satisfied absent the error.

Overlaying this is the doctrine of invited error. As articulated in Eleventh Circuit cases such as:

  • United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006);
  • United States v. Cobb, 842 F.3d 1213, 1222 (11th Cir. 2016); and
  • United States v. Pendergrass, 995 F.3d 858, 881 (11th Cir. 2021),

a party who “induces or invites” a district court to commit a particular error cannot later challenge that same error on appeal.

Duldulao recognizes a narrow exception: invited error does not bar relief where the party’s position “relied on settled law that changed while the case was on appeal,” and the resulting error is an “instructional error” flowing directly from clear and longstanding precedent that both parties and the court relied upon. 87 F.4th at 1255, 1257. Crucially, Duldulao warns that this is not a “free‑roving change‑in‑law exception.”

B. Brown/Jackson II, Florida Drug Offenses, and the Categorical Approach

The ACCA defines a “serious drug offense” to include, inter alia, certain state offenses “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” 18 U.S.C. § 924(e)(2)(A)(ii). Courts apply the categorical approach, comparing the elements of the state statute to the federal definition; a state conviction qualifies only if the state statute is the same as, or narrower than, the federal definition.

In the Eleventh Circuit, United States v. Jackson has been central to this inquiry:

  • Jackson I, 36 F.4th 1294 (11th Cir. 2022), initially held that the relevant federal controlled‑substance schedules are those in effect at the time of the federal firearms offense. It was subsequently vacated.
  • Jackson II, 55 F.4th 846 (11th Cir. 2022) (en banc), superseding Jackson I, held that courts must look to the federal schedules in effect at the time of the state drug conviction.
  • The Supreme Court in Brown v. United States, 602 U.S. 101 (2024), affirmed Jackson II, making the timing rule binding nationwide.

Separately, the Eleventh Circuit has dealt extensively with Florida’s cocaine statutes and their treatment of cocaine isomers and derivatives:

  • Chamu v. U.S. Attorney General, 23 F.4th 1325 (11th Cir. 2022), in the immigration context, explained the chemistry of isomers and held that a noncitizen challenging a state drug statute as broader than federal law must show a “realistic probability”—not mere theoretical possibility—that the state prosecutes conduct outside the federal definition. It “seriously doubted” there was any scientific basis for claiming a cocaine stereoisomer exists that falls outside the federal definition and declined to find overbreadth absent evidence in the record.
  • United States v. Laines, 69 F.4th 1221 (11th Cir. 2023), applied Chamu in the ACCA context, emphasizing that under plain‑error review a defendant bears the burden of proving overbreadth and must satisfy the realistic‑probability standard.
  • United States v. Harris, 941 F.3d 1048 (11th Cir. 2019), held in the ordinary (preserved‑error) setting that the government bears the burden of justifying ACCA enhancements.

Finally, basic procedural rules on preservation and waiver guided the panel:

  • United States v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007), and United States v. Corbett, 921 F.3d 1032, 1043 (11th Cir. 2019), hold that an issue is not preserved if the specific legal theory was not fairly presented to the district court, even if the underlying facts were before it.
  • Plain error review follows United States v. Dudley, 5 F.4th 1249, 1255 (11th Cir. 2021): the defendant must show (1) error, (2) that is plain, (3) affecting substantial rights, and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings.

C. Supervised Release Pronouncement: Hayden and Rodriguez

Eleventh Circuit law now clearly distinguishes between:

  • Mandatory conditions of supervised release (imposed by statute, e.g., no new crimes, DNA collection), and
  • Discretionary conditions (including commonly used “standard conditions” and case‑specific “special conditions”).

In United States v. Hayden, 119 F.4th 832, 838 (11th Cir. 2024), the court held that a defendant’s due process rights are violated if a district court fails to pronounce his discretionary conditions of supervised release at sentencing. The pronouncement requirement can be satisfied by:

  • Stating the conditions individually on the record; or
  • Orally adopting by reference a written list of conditions that is clearly identified, such as those recommended in the PSI or contained in a standing administrative order.

United States v. Rodriguez, 75 F.4th 1231, 1246–48 (11th Cir. 2023), elaborated that:

  • Simply referring to the PSI or standing order is sufficient, so long as the referenced document actually lists the conditions being imposed; but
  • Imposing discretionary conditions for the first time in the written judgment, without oral pronouncement or valid incorporation by reference, violates due process and is reversible error.

Hayden and Rodriguez therefore supply the rule that underpins Hill’s partial victory on supervised release.

Detailed Analysis of the Court’s Reasoning

A. Issue One: Jury Determination of “Different Occasions” and Invited Error

1. The Right Recognized in Erlinger

By the time Hill’s case reached the Eleventh Circuit, the Supreme Court’s decision in Erlinger had clarified that the “different occasions” inquiry is an element‑like fact that:

  • Must be submitted to the jury;
  • Must be proved beyond a reasonable doubt; and
  • May not be determined solely by the judge as a matter of sentencing factfinding.

Had Hill simply remained silent at trial and sentencing while the judge decided the occasions question, his appeal likely would have turned on whether the error was harmless under Neder. But the panel never reached that question because of invited error.

2. How Hill Invited the Error

The panel emphasized that the district court carefully explained to Hill:

  • That the law regarding who should decide the “separate occasions” question was unsettled;
  • That, if Hill asserted a right to have the jury decide it, the court would submit the issue to the jury; and
  • That if Hill did not assert that right, the court would decide the question at sentencing.

After consulting counsel, Hill affirmatively stated:

  • “I guess I stipulate to it. I don’t want to sign anything, but I stipulate …”
  • “I don’t want the jury to decide that.”

The panel found that:

  • Hill understood his options and their implications;
  • He knowingly and voluntarily chose not to have the jury determine whether the prior convictions were committed on different occasions; and
  • He thereby “invited” the district court to decide the issue at sentencing.

Under settled Eleventh Circuit law, a defendant cannot “challenge as error a ruling or other trial proceeding invited by that party.” Invited error is more than mere forfeiture; it is an affirmative participation in the claimed error. Because Hill induced the procedure he later attacked, the panel held that it was barred from reviewing that claim at all.

3. Why the Duldulao Exception Did Not Apply

Hill might have hoped that Duldulao’s change‑in‑settled‑law exception would rescue his claim after Erlinger. But the panel rejected that possibility, reasoning that:

  • The Duldulao exception applies only where a party’s invited error “relied on settled law that changed while the case was on appeal.”
  • Here, the district court expressly told Hill that the law on who decides the different‑occasions question was “unsettled” at the time of trial and sentencing.
  • Because neither the district court nor the parties relied on clear, longstanding precedent later overruled by Erlinger, this was not the sort of “instructional error” contemplated by Duldulao.

Accordingly, Erlinger did not open the door for Hill; invited error closed it. The ACCA enhancement could not be attacked on that ground.

4. Indictment Sufficiency as to “Different Occasions”

Hill also asserted that the indictment failed to inform him of any “different‑occasions” allegations. The panel, in a footnote‑like discussion, rejected this claim on the merits (to the extent it was not already barred by invited error):

  • The superseding indictment:
    • Listed Hill’s prior convictions and dates;
    • Cited § 924(e), the ACCA enhancement provision; and
    • Contained a distinct section stating that Hill “had at least three previous convictions for a violent felony, a serious drug offense, or both, committed on different occasions from one another.”
  • Hill himself admitted the superseding indictment added the “separate occasion” language.

Thus, the indictment provided sufficient notice that the government would seek an ACCA enhancement based on offenses committed on different occasions.

B. Issue Two: Florida Cocaine Convictions as ACCA “Serious Drug Offenses”

1. Preservation and the New Isomer Argument

Below, Hill’s principal ACCA argument rested on ioflupane and statutory timing: he claimed Florida’s inclusion of ioflupane in its definition of cocaine at the time of his state offenses, combined with the later removal of ioflupane from the federal schedules, made his convictions overbroad under the categorical approach. He relied on the since‑superseded Jackson I theory that the relevant federal schedules were those in effect at the time of his federal offense.

On appeal, by contrast, Hill shifted to a different legal theory: he argued that:

  • The federal definition of cocaine encompasses only two kinds of stereoisomers (optical and geometric);
  • Florida’s definition purportedly covers all three categories of stereoisomers (optical, geometric, and nongeometric diastereomers); and
  • Therefore, the Florida statute is categorically broader and cannot serve as an ACCA predicate.

Although both theories involve the breadth of Florida’s cocaine definition, the panel treated them as distinct legal arguments. Under Straub and Corbett, presenting a different legal theory on appeal—despite shared factual predicates—does not preserve the new theory. Consequently, the panel reviewed the isomer‑based overbreadth challenge only for plain error.

2. Plain‑Error Framework and the Realistic‑Probability Requirement

Under normal (preserved) review, Harris places the burden on the government to prove that an ACCA enhancement is warranted. But under plain error review, as the panel stressed, the burden shifts: the defendant must show that an error occurred. That means:

  • The defendant must establish that the state statute is indeed broader than the federal definition of a “serious drug offense”; and
  • Doing so requires more than pointing to textual differences—it requires demonstrating a “realistic probability” that the state applies its statute to conduct that does not fall within the federal definition, as articulated in Chamu.

In Chamu, the Eleventh Circuit “seriously doubted” that any cocaine stereoisomer exists outside the federal definition and held that absent evidence—such as scientific proof or actual prosecutions—a defendant cannot meet the realistic‑probability test simply by hypothesizing broader statutory language. Laines applied this principle in ACCA litigation under plain‑error review.

3. Application to Hill’s Isomer Argument

Hill asserted that Florida’s inclusion of “nongeometric diastereomers” rendered its cocaine definition overbroad. But he:

  • Provided no scientific evidence that such a cocaine stereoisomer exists; and
  • Offered no examples of Florida prosecuting conduct involving any such hypothetical compound.

Given Chamu’s prior skepticism and the absence of record evidence, the panel concluded:

  • Hill failed to establish any error at all under the first prong of the plain‑error test; and
  • Therefore, his overbreadth challenge necessarily failed, without need to reach whether any error would have been plain or affected his substantial rights.

Thus, the panel reaffirmed in effect that, at least absent concrete evidence to the contrary, Florida cocaine convictions under Fla. Stat. § 893.13 remain valid ACCA “serious drug offenses” in the Eleventh Circuit.

4. The 2016 Conviction and Brown/Jackson II

At sentencing, Hill had separately argued that his 2016 Florida cocaine conviction could not qualify as a predicate because, by 2016, ioflupane had been removed from the federal controlled‑substance schedules. The government responded—and the district court agreed—that the relevant federal schedules are those in effect when Hill committed the offense (2012), consistent with Jackson II and later Brown.

On appeal, the panel noted that this dispute ultimately made little difference: even if the 2016 conviction did not qualify, Hill had at least three other ACCA predicates (the 1996 resisting‑with‑violence conviction and the two 2006 cocaine sales). Hill had conceded the 2006 convictions below under Jackson II. The panel therefore did not disturb the ACCA enhancement on that alternative basis either.

C. Issue Three: Due Process and Unpronounced “Standard” Conditions of Supervised Release

1. Preservation and Standard of Review

Hill did not object at sentencing when the court stated it was imposing the supervised release conditions “set out in the presentence investigation report” and the “standard and mandatory conditions” plus the “specific conditions set out in the presentence investigation report.” The panel therefore applied plain‑error review, but first confirmed that Hill had an “opportunity to object,” an inquiry reviewed de novo under Hayden.

Because the court clearly announced it would impose certain supervised release conditions and then invited objections, Hill had that opportunity. His failure to object meant plain‑error review governed his challenge to the unpronounced “Standard Conditions of Supervision” later appearing in the written judgment.

2. What the PSI Actually Recommended

The PSI recommended:

  • That “any term of supervision be under the mandatory and standard conditions adopted for use in the Northern District of Florida,” referencing an “Overview of Probation and Supervised Release Conditions” at www.uscourts.gov; and
  • Six specific “special conditions” (testing, treatment, mental health, etc.).

The critical fact: at the time of Hill’s sentencing, the Northern District of Florida had not adopted any set of district‑wide “standard conditions.” As the panel put it, “A PSI recommending non‑existent standard conditions is equivalent to it not recommending any conditions at all.” Thus:

  • The PSI’s reference to “standard conditions adopted for use in the Northern District of Florida” did not identify any actual conditions; and
  • The only discretionary conditions the PSI truly “recommended” were the six specifically listed special conditions.

The panel rejected the government’s argument that the PSI thereby recommended the generic “Overview of Probation and Supervised Release Conditions” posted on www.uscourts.gov. The PSI merely used the website to show that recommending district standard conditions was aligned with national guidance; it did not itself incorporate the website’s list as the operative conditions.

3. Oral Pronouncement and the Written Judgment

At sentencing, the court twice stated it would impose:

  • The supervised release conditions “set out in the [PSI]”; and
  • The “standard and mandatory conditions, as well as the specific conditions set out in the [PSI].”

Because the district had no adopted “standard conditions,” the panel read the court’s reference to “standard … conditions” as effectively meaningless. The only concrete incorporation by reference was to:

  • Mandatory conditions (fixed by statute); and
  • The six “specific conditions set out in the PSI,” i.e., the special conditions.

Yet the written judgment went further, listing:

  • Seven statutory “Mandatory Conditions,”
  • Thirteen “Standard Conditions of Supervision,” and
  • Six “Additional Supervised Release Terms” (matching the PSI’s special conditions).

The thirteen “Standard Conditions” were never:

  • Individually pronounced at sentencing; or
  • Validly incorporated by reference via the PSI (because the PSI did not, and could not, recommend district‑adopted conditions that did not exist).

4. Applying Hayden and Rodriguez: Plain‑Error Analysis

Under Hayden, failure to pronounce discretionary conditions of supervised release violates due process. Under Rodriguez, a sentencing court may orally adopt a written list of conditions—such as those in the PSI or a standing order—but here, the supposed “standard conditions” were neither in the PSI nor in any adopted district order.

The panel walked through all four plain‑error prongs:

  1. Error: Imposing thirteen discretionary conditions in the written judgment that were never orally imposed, nor validly incorporated by reference, was an error.
  2. Obviousness: The error was “obvious” in light of existing Eleventh Circuit precedent (Hayden, Rodriguez). Under United States v. Corbett, 921 F.3d 1032, 1037 (11th Cir. 2019), plain error requires precedent directly on point; here, there was such precedent.
  3. Substantial rights: The error affected Hill’s substantial rights because he was denied the opportunity to object to those thirteen discretionary conditions at sentencing. Rodriguez, 75 F.4th at 1248, recognizes this as a real and cognizable prejudice.
  4. Fairness and public reputation: Imposing discretionary conditions “without due process of law”—that is, without giving the defendant notice and an opportunity to be heard—undermines the fairness, integrity, and public reputation of judicial proceedings. Hayden, 119 F.4th at 838.

Having found all four prongs satisfied, the panel vacated the thirteen “Standard Conditions of Supervision” and remanded for resentencing “as to those conditions” only, leaving the custodial sentence and special conditions intact.

Clarifying Complex Legal Concepts

A. The Armed Career Criminal Act (ACCA)

The ACCA, 18 U.S.C. § 924(e), dramatically increases penalties for § 922(g) firearm offenders who have three prior convictions for “violent felonies” or “serious drug offenses” committed on different occasions:

  • Ordinary § 922(g) carries up to 10 years’ imprisonment.
  • ACCA raises the mandatory minimum to 15 years and the maximum to life.

Key concepts:

  • Serious drug offense: Includes certain state drug trafficking crimes involving “manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance” that are punishable by at least ten years’ imprisonment (for state offenses) or prescribed in specific federal statutes.
  • Different occasions: Each predicate must arise from a distinct criminal episode—separate in time, place, or character—not merely separate counts in one continuous act.

B. The Categorical Approach and “Least Culpable Conduct”

Under the categorical approach, courts compare the elements of the state statute of conviction—not the defendant’s actual conduct—to the generic federal definition. If the state statute criminalizes a broader range of conduct than the federal provision, a conviction under it is not a qualifying ACCA predicate.

The “least culpable conduct” rule means the court assumes the conviction rested on the minimum conduct criminalized by the statute (e.g., the least serious controlled substance, or the lowest mental state), unless the statute is “divisible” and permits a modified categorical approach.

C. Stereoisomers and Cocaine Definitions

The isomer debate is highly technical:

  • Isomers are molecules with the same chemical formula but different arrangements of atoms, yielding different properties.
  • Stereoisomers are isomers with the same connectivity but differing three‑dimensional orientation.
  • Stereoisomers divide into:
    • Optical isomers (mirror‑image molecules),
    • Geometric isomers (cis/trans configurations), and
    • Nongeometric diastereomers (non‑mirror‑image configurations that are not geometric isomers).

Defendants sometimes argue a state drug statute is overbroad because it references a broader universe of isomers (e.g., “all stereoisomers”) than the federal schedules. Chamu requires evidence that such additional isomers actually exist and are covered by state law in practice; mere textual breadth is insufficient.

D. Invited Error vs. Forfeiture and Plain Error

  • Forfeiture occurs when a party fails to timely assert a right or objection. Appellate courts review forfeited issues for plain error.
  • Waiver is an intentional relinquishment of a known right; a waived issue is generally not reviewable.
  • Invited error is a stronger form of waiver: the party not only gives up the right but actively solicits the very ruling he later attacks. Appellate review is ordinarily barred altogether.

Hill illustrates invited error: after being offered a jury determination on “different occasions,” Hill explicitly chose to have the judge decide the issue. That affirmative choice barred him from benefiting from the subsequent Erlinger decision.

E. Supervised Release Conditions and Due Process

  • Mandatory conditions are imposed by statute (e.g., not committing another federal, state, or local crime); no pronouncement issue typically arises.
  • Standard conditions are commonly used discretionary conditions (e.g., reporting to a probation officer, work requirements, travel restrictions) often adopted by local rule or standing order.
  • Special conditions are case‑specific (e.g., drug treatment, mental health treatment, financial disclosure).

Due process requires:

  • That defendants receive notice of discretionary conditions at sentencing; and
  • That they have a meaningful opportunity to object.

Courts may satisfy this by reading them aloud or by explicitly adopting a written list (PSI, standing order) whose contents are clear and available to the parties. Imposing conditions for the first time in the written judgment, without such pronouncement or incorporation, violates due process and is reversible.

Practical and Doctrinal Impact

A. ACCA Litigation after Hill

Although unpublished, Hill reinforces several important trends in ACCA litigation in the Eleventh Circuit:

  • Defendants with Florida cocaine convictions face an uphill battle in arguing that the statutes are categorically broader than federal law. Without concrete scientific evidence or examples of prosecutions for conduct beyond the federal definition, overbreadth arguments based on hypothetical isomers are unlikely to succeed—especially on plain‑error review.
  • Post‑Brown/Jackson II, the timing question is settled: the federal schedules in effect at the time of the state conviction govern. Efforts to revive the Jackson I theory are foreclosed.
  • The decision underscores the importance of preserving specific legal theories in the district court. Shifting from an ioflupane‑timing argument below to an isomer‑overbreadth argument on appeal triggered plain‑error review, dramatically raising the defendant’s burden.

B. Erlinger and the Risks of Invited Error

Hill illustrates a critical practical lesson in the wake of Erlinger:

  • Defendants (and counsel) should be extremely cautious before agreeing that the court, rather than the jury, will find ACCA predicates or “different occasions.”
  • Even where law appears unsettled, an explicit election to have the judge decide the issue may be treated as invited error, barring later reliance on favorable Supreme Court developments.
  • Counsel should, at a minimum, preserve the position that any fact increasing the statutory minimum or maximum—including “different occasions”—must be found by a jury.

Conversely, prosecutors and district courts may rely on Hill as persuasive authority to argue that post‑Erlinger appeals are barred where the defendant affirmatively requested judge‑based factfinding on ACCA predicates.

C. Sentencing Practice and Supervised Release in the Eleventh Circuit

On supervised release, Hill sends a clear message to probation offices and district courts:

  • PSIs must be accurate about which “standard conditions” exist in a given district. Referring to non‑existent district‑adopted conditions is functionally equivalent to recommending none.
  • Sentencing judges cannot safely rely on boilerplate phrases like “standard conditions adopted by this district” unless there is, in fact, a clear and accessible list of such conditions—preferably enacted via standing order or local rule.
  • If a court wishes to impose “standard conditions,” it must:
    • Either recite them (or a summary) on the record; or
    • Expressly incorporate by reference a specific document (e.g., “the standard conditions of supervision set forth in Standing Order X” or those “listed in Part D of the PSI”).

For defense counsel, Hill counsels vigilance:

  • If the district court’s oral pronouncement of supervised release conditions is vague or general, counsel should object and seek clarification on the record.
  • On appeal, counsel should compare the transcript to the written judgment; any discretionary condition appearing only in the written judgment may be vulnerable under Hayden, Rodriguez, and now Hill.

D. Unpublished but Persuasive

As an unpublished, non‑argument‑calendar decision, Hill is not binding precedent in the Eleventh Circuit. Nevertheless:

  • It synthesizes and applies recent Supreme Court and Eleventh Circuit cases (Erlinger, Brown/Jackson II, Chamu, Laines, Hayden, Rodriguez);
  • It provides a concrete example of how the invited error doctrine interacts with newly recognized constitutional jury‑trial rights; and
  • It offers practical guidance on supervised release pronouncement where PSI recommendations are defective.

Future panels and practitioners are likely to cite Hill as persuasive authority, particularly on the narrow but important issue of incorporating by reference non‑existent “standard conditions” of supervision.

Conclusion

United States v. Hill is a compact but legally rich decision. It:

  • Confirms that invited error can bar defendants from invoking new constitutional protections recognized after trial, such as Erlinger’s jury‑trial right on ACCA “different occasions”;
  • Reinforces the realistic‑probability requirement and the demanding evidentiary burden defendants face when attacking Florida cocaine statutes as overbroad under the categorical approach, especially on plain‑error review; and
  • Strengthens due process safeguards surrounding supervised release by holding that courts cannot silently import “standard conditions” into the written judgment unless those conditions were clearly pronounced or validly incorporated at sentencing—and that referencing a PSI that points to non‑existent district standards does not suffice.

While unpublished, the opinion reflects how the Eleventh Circuit is harmonizing recent Supreme Court jurisprudence with its own precedents in ACCA and sentencing law. For litigants and courts alike, Hill underscores three enduring lessons: preserve issues with specificity, avoid invited error, and ensure that the conditions of supervised release are clearly set out in open court.

Case Details

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

Comments