United States v. Robert Asuncion-Pimental, 290 F.3d 91 (2d Cir. 2002). · Go Syfert
United States v. Robert Asuncion-Pimental, 290 F.3d 91 (2d Cir. 2002). Cases Citing This Book View Copy Cite
53 citation events (53 in the last 25 years) across 6 distinct courts.
Treatment trajectory · 2002 → 2026 · click a year to view as-of
2002 2014 2026
Cited for
At page 94 Determining suitability of standard and special conditions25 citing cases“where these factors are present, however, these 'special' conditions are no different in practical terms from 'standard' conditions, that is, they are generally recommended.”2 citing courts quote it · 23 listed here
  • United States v. Maiorana, 153 F.4th 306 (2d Cir. 2025).published 2 cites
    Indeed, we have recognized that “the ‘standard’ conditions provided in § 5D1.3(c) are presumed suitable in all cases” and are not “contingent on the presence of specific factors in each case.” United States v. Asuncion-Pimental, 290 F.3d 9…
  • United States v. Hernandez, No. 22-1923 (2d Cir. May 19, 2025).unpublished
    Because Hernandez suffers from forms of mental illness and has substance abuse problems, these special conditions are “generally recommended.” See United States v. Asuncion-Pimental, 290 F.3d 91, 94 (2d Cir. 2002).
  • United States v. Arguedas, 134 F.4th 54 (2d Cir. 2025).published
    This condition is “clearly [a] ‘basic administrative requirement’ that [is] ‘necessary to supervised release’” and “provide[s] essential details for [the defendant’s] compliance with the enumerated standard conditions,” United States v. Th…
  • United States v. Hugo Espinosa Chavez, No. 22-13769 (11th Cir. Feb. 5, 2025).unpublished
    That prohibition, set out in § 5D1.3(c)(10), is a standard condition that is “presumed suitable in all cases.” See United States v. Asuncion v. Pimental, 290 F.3d 91, 94 (2nd Cir. 2002); United States v. Torres-Aguilar, 352 F.3d 934, 937 (…
  • United States v. Genao, No. 23-6710, 2024 WL 4404042 (2d Cir. Oct. 4, 2024).unpublished 2 cites
    The written commitment is mere evidence of such authority.” United States v. Asuncion-Pimental, 1 Unless otherwise indicated, when quoting cases, all internal quotation marks, alteration marks, emphases, footnotes, and citations are omitte…
  • United States v. Sims, 92 F.4th 115 (2d Cir. 2024).published 2 cites
    While the Guidelines technically describe a category of “recommended” conditions as “special” because their appropriateness is contingent on whether certain circumstances are present, we consider those recommended conditions to be “as nece…
  • United States v. Whitaker, No. 21-1543, 2023 WL 5499363 (2d Cir. Aug. 25, 2023).unpublished 2 cites
    United States v. Truscello, 168 F.3d 61, 63 (2d Cir. 1999); United States v. Asuncion-Pimental, 290 F.3d 91, 94 (2d Cir. 2002).
  • United States v. Myers, No. 21-1994-cr (2d Cir. Nov. 23, 2022).unpublished
    Because the ban is a standard condition of 9 supervision, see U.S.S.G. § 5D1.3(c)(10), it is “presumed suitable in all cases,” 10 United States v. Asuncion-Pimental, 290 F.3d 91, 94 (2d Cir. 2002), including 11 cases in which the underlyin…
  • United States v. Rosie Diggles, 957 F.3d 551 (5th Cir. 2020).published
    See Rouland, 726 F.3d at 735 (“[S]pecial conditions may be tantamount to standard conditions under the appropriate circumstances, thereby precluding the need for an oral pronouncement.”); Torres-Aguilar, 352 F.3d at 937 (explaining that it…
  • United States v. Luis Magallon-Contreras, 810 F. App'x 281 (5th Cir. 2020).unpublished
    That the Guidelines would still call that condition special is “irrelevant.” Id. at 937 (quoting United States v. Asuncion-Pimental, 290 F.3d 91, 94 (2d Cir. 2002)).
Show 13 more citing cases
  • United States v. Dodd, No. 18-2320 (2d Cir. Oct. 28, 2019).unpublished
    We later held that the “special’ conditions” listed in § 5D1.3(d) are, when the conditions listed for their imposition are present, “no different in practical terms from ‘standard’ conditions, that is, they are generally recommended.” Unit…
  • United States v. Alvontre Griffin, No. 17-30453 (5th Cir. June 19, 2019).unpublished
    Yet, Torres-Aguilar clarified that “the Sentencing Guidelines’ identification of the conditions enumerated in § 5D1.3(d) as ‘special’ does not foreclose the possibility that a district court may properly include them in its judgment withou…
  • United States v. Sloley, 568 F. App'x 79 (2d Cir. 2014).unpublished
    The United States Sentencing Guidelines § 5D1.3(c)(l) states that a “standard” condition recommended for supervised release is that “the defendant shall not leave the judicial district or other specific geographic area without the permissi…
  • United States v. Roger Rouland, 726 F.3d 728 (5th Cir. 2013).published
    (The fact that the condition ... is labeled ‘special’ by the Guidelines is irrelevant.)
  • United States v. Roberto Rosario, 386 F.3d 166 (2d Cir. 2004).published
    However, with respect to later modifications of the terms of supervised release omitted from the oral pronouncement, we have permitted inclusion of (a) conditions of supervised release listed as “mandatory” or “standard” in subsections 5D1…
  • United States v. Torres-Aguilar, 352 F.3d 934 (5th Cir. 2004).published 2 cites
    Asuncion-Pimental, 290 F.3d at 95.
  • United States v. David Heredia-Holguin, 823 F.3d 337 (5th Cir. 2016).published 2 cites
    (possession of a firearm by a felon)
  • United States v. Chavez-Guerrero, 81 F. App'x 825 (5th Cir. 2003).unpublished 2 cites
    See United States v. Asuncion-Pimental, 290 F.3d 91, 94-95 (2d Cir. 2002).
  • United States v. Jasper, 291 F. Supp. 2d 248 (S.D.N.Y. 2003).published
    See 18 U.S.C. § 922 (g)(1); United States v. Asuncion-Pimental, 290 F.3d 91, 94 (2d Cir.2002).
  • United States v. Vassilios K. Handakas, 329 F.3d 115 (2d Cir. 2003).published
    See United States v. Asuncion-Pimental, 290 F.3d 91, 94 (2d Cir.2002).
  • United States v. Skvarla, 673 F. App'x 111 (2d Cir. 2016).unpublished
    (confirming that standard conditions are “presumed suitable in all cases)
  • United States v. Lateef, 300 F. App'x 117 (2d Cir. 2008).unpublished
    See, e.g., United States v. Asuncion-Pimental, 290 F.3d 91, 94-95 (2d Cir.2002) (per curiam).
  • United States v. Sepulveda Contreras, 466 F.3d 166 (1st Cir. 2006).published
    (stating that, where specific factors necessary to make “special” conditions “recommended” are present, “these ‘special’ conditions are no different in practical terms from ‘standard’ conditions, that is, they are genera…)
At page 95 Determining standard versus special supervised release conditions6 citing cases“in these circumstances, the 'special' condition recommended in 5d1.3(d)(l) is as standard as those conditions recommended in 5d1.3(c),”1 citing court quotes it
  • United States v. Whitaker, No. 21-1543, 2023 WL 5499363 (2d Cir. Aug. 25, 2023).unpublished 2 cites
    United States v. Truscello, 168 F.3d 61, 63 (2d Cir. 1999); United States v. Asuncion-Pimental, 290 F.3d 91, 94 (2d Cir. 2002).
  • United States v. Babineaux, 493 F. App'x 485 (4th Cir. 2012).unpublished
    Torres-Aguilar, 352 F.3d at 937 (quoting United States v. Asuncion-Pimental, 290 F.3d 91, 95 (2d Cir.2002)). .
  • United States v. Joseph Babineaux, Jr., No. 11-30650 (5th Cir. Sept. 21, 2012).unpublished
    Generally, the failure to impose a special condition orally at the sentencing hearing creates a conflict, and the written judgment must be amended to comport with the oral sentence.9 Under appropriate circumstances, however, special condit…
  • United States v. Torres-Aguilar, 352 F.3d 934 (5th Cir. 2004).published 2 cites
    Asuncion-Pimental, 290 F.3d at 95.
  • United States v. Torres, No. 21-1970 (L) (2d Cir. Nov. 29, 2022).unpublished
    See, e.g., United States v. Asuncion-Pimental, 290 F.3d 91, 95 (2d Cir. 2002); see also, United States v. Villano, 816 F.2d 1448, 1452 (10th Cir. 1987) (“[T]he true function of the 10 written document is to help clarify an ambiguous oral s…
  • United States v. Christopher Thomas, 299 F.3d 150 (2d Cir. 2002).published
    Therefore, “[w]here an unambiguous oral sentence conflicts with the written judgment, the constitutional right of a defendant to be present at sentencing dictates that the oral pronouncement of sentence must control.” United States v. A-Ab…
At page 93 Oral sentence controlling over written judgment in conflict6 citing cases“In Truscello we held that a district court’s written judgment, which included a number of standard and mandatory conditions that the court had failed to recite at sentencing, did not directly conflict with the oral pronouncement of sen”the opinion's own words at *93
  • United States v. Genao, No. 23-6710, 2024 WL 4404042 (2d Cir. Oct. 4, 2024).unpublished 2 cites
    The written commitment is mere evidence of such authority.” United States v. Asuncion-Pimental, 1 Unless otherwise indicated, when quoting cases, all internal quotation marks, alteration marks, emphases, footnotes, and citations are omitte…
  • United States v. Torres, 558 F. App'x 123 (2d Cir. 2014).unpublished
    Torres argues that his 18-month sentence — pronounced orally at sentencing, and memorialized in writing on the district court’s docket (Docket Entry 34) and in its Final Judgment — was procedurally unreasonable because the Statement of Rea…
  • United States v. Gracesqui, 512 F. App'x 97 (2d Cir. 2013).unpublished
    We hold that the district court’s incorrect recitation in the SOR does not constitute error because “where there is a direct conflict between an unambiguous oral pronouncement of sentence and the written judgment and commitment, ... the or…
  • United States v. Williams, No. 18-3016 (2d Cir. Oct. 8, 2020).unpublished
    See United States v. Asuncion-Pimental, 290 F.3d 91, 93 (2d Cir. 2002).
  • United States v. Khafizov, 604 F. App'x 88 (2d Cir. 2015).unpublished
    See United States v. Asuncion-Pimental, 290 F.3d 91, 93 (2d Cir.2002) (“[I]t is the oral sentence which constitutes the judgment of the court, and *91 which is authority for the execution of the court’s sentence.
  • United States v. Christopher Thomas, 299 F.3d 150 (2d Cir. 2002).published
    Therefore, “[w]here an unambiguous oral sentence conflicts with the written judgment, the constitutional right of a defendant to be present at sentencing dictates that the oral pronouncement of sentence must control.” United States v. A-Ab…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Robert ASUNCION-PIMENTAL, Defendant-Appellant
Docket 01-1345.
Court of Appeals for the Second Circuit.
May 10, 2002.
Published opinion
290 F.3d 91
2002 U.S. App. LEXIS 9425
2002 WL 970488
Yuanchung Lee, Of Counsel, The Legal Aid Society, Federal Defender Division, Appeals Bureau, New York, NY, for Appellant., Alan Vinegrad, United States Attorney, Eastern District of New York (Emily Berger and Catherine W.H. So, Assistant United States Attorneys, Of Counsel, on the brief), Brooklyn, NY, for Appellee.
Walker, Parker, Sotomayor.
Cited by 36 opinions  |  Published
PER CURIAM.

Defendant-Appellant Robert Asunción-Pimental appeals from a judgment entered on June 25, 2001 in the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge). Upon his guilty plea, Defendant was convicted under 8 U.S.C. § 1326(a) and (b)(2) of attempting to reenter the United States illegally following deportation. He was sentenced to forty-six months of incarceration, three years of supervised release, and a special assessment of $100.

The district court’s written judgment included a condition that Defendant not possess a firearm during his supervised release. The primary issue on appeal is whether this condition must be stricken from the written judgment because the court failed to pronounce it orally during sentencing. Because we conclude this condition merely clarified Defendant’s sentence without altering it, we affirm.

I. BACKGROUND

The following facts are taken from the parties’ briefs.

Defendant, a native of the Dominican Republic, entered the United States in 1992. He was convicted in 1996 of possessing heroin with intent to distribute, possessing a controlled substance near a school, and unlawfully possessing a firearm. For these crimes Defendant was sentenced to two years and one day of imprisonment. After his release from prison, Defendant was deported on November 4, 1998 to the Dominican Republic.

Defendant attempted to reenter the United States on September 27, 2000, when he arrived in New York City on a flight from the Dominican Republic. Upon learning that Defendant had presented a counterfeit passport, officials from the Immigration and Naturalization Service ar[*93] rested him, fingerprinted him, and discovered his identity.

Defendant was charged under 8 U.S.C. § 1326(a) and (b)(2) with attempting to reenter the country illegally after having been convicted of an aggravated felony and deported. He pleaded guilty to the one count indictment on November 29, 2000. In open court on May 22, 2001, the district court orally sentenced Defendant to serve forty-six months in prison and a term of supervised release. Tr. at 7 (May 22, 2001). Regarding the latter, the court announced, “I’m going to impose a three-year period of supervision to follow his release, with the direction that the supervision be inactive unless [Defendant] should return to the country or not be deported, both of which seem to me unlikely.” Id. No mention was made of conditions of release.

In June 2001 the court issued its written Judgment in a Criminal Case, which included eighteen conditions to govern Defendant’s supervised release. Seventeen of these conditions are identical or similar to mandatory and standard conditions provided in the Sentencing Guidelines. See U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 5D1.3(a) & (c). The remaining condition, that Defendant not “own or possess a firearm or destructive device,” tracks the language of a special condition recommended in U.S.S.G. § 5D1.3(d).

Defendant now asks us to remand this case to the district court with an order to strike all of the conditions of supervision from the written judgment on the ground that they are inconsistent with the oral judgment and imposed in violation of his right to be present at sentencing.

We have jurisdiction to hear this appeal under 28 U.S.C. § 1291.

II. DISCUSSION

Federal Rule of Criminal Procedure 43(a) provides that a defendant shall be present at the imposition of his sentence. Fed.R.Crim.P. 43(a). In view of this rule we have concluded that “[i]t is the oral sentence which constitutes the judgment of the court, and which is authority for the execution of the court’s sentence. The written commitment is mere evidence of such authority.” United States v. Marquez, 506 F.2d 620, 622 (2d Cir.1974) (citations and internal quotation marks omitted). Therefore, “where there is a direct conflict between an unambiguous oral pronouncement of sentence and the written judgment and commitment, ... the oral pronouncement, as correctly reported, must control.” Id. (citation and internal quotation marks omitted); see also United States v. Salameh, 261 F.3d 271, 276 (2d Cir.2001) (per curiam); United States v. A-Abras Inc., 185 F.3d 26, 29 (2d Cir.1999); United States v. DeMartino, 112 F.3d 75, 78 (2d Cir.1997).

In his reply brief, Defendant has conceded that his challenge to the seventeen “standard” and “mandatory” conditions of supervised release listed in the written judgment is foreclosed by this Court’s decision in United States v. Truscello, 168 F.3d 61 (2d Cir.1999). [1] Reply Br. at 2. In Truscello we held that a district court’s written judgment, which included a number of standard and mandatory conditions that the court had failed to recite at sentencing, did not directly conflict with the oral pronouncement of sen[*94] tence. The district court, we observed, had orally sentenced the defendant to a term of supervised release. Id. at 63. Reasoning that “[i]mplieit in the very nature of supervised release is that certain conditions are necessary to effect its purpose,” id. at 62, we concluded that the written judgment “simply clarified the meaning of that sentence by specifying what the supervision was to entail,” id. at 63. We explained that the “standard conditions” are “basic administrative requirement[s] essential to the functioning of the supervised release system” and, therefore, are “almost uniformly imposed by the district courts and have become boilerplate.” Id. (citation and internal quotation marks omitted). These standard conditions “are generally so appropriate to effect the purpose of supervised release that any argument by [a defendant] that they constitute additional punishment, or are in conflict with his oral sentence, would be disingenuous.” Id. at 64.

Defendant asserts that even if the seventeen “mandatory” and “standard” conditions included in the district court’s written judgment were not improper under Truscello, the remaining condition that he not possess a firearm is neither “mandatory” nor “standard” and therefore must be stricken. To the contrary, we find that the reasoning of Truscello extends to this prohibition irrespective of its designation as a “special” condition in the Sentencing Guidelines. [2]

One of the mandatory conditions of Defendant’s supervised release is that he not commit another offense. See 18 U.S.C. § 3583(d); U.S.S.G. § 601.3(a)(1). As a convicted felon, Defendant is prohibited under 18 U.S.C. § 922(g)(1) from possessing a firearm. In this context, the specific condition that Defendant not possess a firearm is largely only a clarification of the more general mandatory condition that he not break the law. [3] Cf. United States v. Morey, 120 F.3d 142, 143 (8th Cir.1997) (per curiam).

The fact that the condition concerning firearm possession is labeled “special” by the Guidelines is irrelevant in this case. While the “standard” conditions provided in § 5D1.3(c) are presumed suitable in all cases, the suitability of the conditions provided in § 5D1.3(d) may be contingent on the presence of specific factors in each case. Where these factors are present, however, these “special” conditions are no different in practical terms from “standard” conditions, that is, they are generally recommended. The Sentencing Guidelines state:

The following “special” conditions of supervised release are recommended in the circumstances described ... (1) If the instant conviction is for a felony, or if the defendant was previously convict[*95] ed of a felony or used a firearm or other dangerous weapon in the course of the instant offense — a condition prohibiting the defendant from possessing a firearm or other dangerous weapon.

U.S.S.G. § 5D1.3(d)(l).

The factors identified in § 5D1.3(d)(l) as a prerequisite for imposing the condition that Defendant not possess a firearm are present in this case; Defendant does not dispute that his instant conviction is for a felony or that he was also previously convicted of a felony. In these circumstances, the “special” condition recommended in § 5D1.3(d)(l) is as standard as those conditions recommended in § 5D1.3(c).

III. CONCLUSION

For the reasons set forth above, we hold that the district court’s written judgment identifying specific mandatory, standard, and special conditions to govern Defendant’s supervised release did not directly conflict with the oral sentence pronounced in Defendant’s presence but merely clarified it. The judgment of the district court is AFFIRMED.

1

. Although Defendant suggests that Tmscello was wrongly decided and should be overruled, he makes no argument on this point, acknowledging that a single panel of the Court is generally bound to follow decisions of prior panels. See, e.g., Kremer v. Chem. Constr. Corp., 623 F.2d 786, 788 (2d Cir.1980).

2

. Our opinion in Truscello may be read to suggest that there can never be a "direct conflict” between a written judgment specifying supervised release conditions and an oral judgment that says nothing about such conditions. See Truscello, 168 F.3d at 63 ("The oral pronouncement of sentence simply did not specify what the conditions of supervised release were to be; the specification of those conditions in the written judgment did not in any way conflict with the oral pronouncement.”). Because, like the Court in Truscello, we find that the challenged condition here is effectively a "standard” one, we need not decide (and express no opinion on) whether the holding in Truscello may extend to a case where the challenged condition may not be so characterized.

3

. Because § 922(g)(1) only prohibits possession of a firearm "in or affecting commerce,” the challenged supervised release condition relating to firearm possession theoretically prohibits some conduct that the mandatory condition prohibiting violation of federal law does not.