UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ROD HUNT, Defendant-Appellant.
Nos. 18-1197 & 18-1198
United States Court of Appeals For the Seventh Circuit
July 23, 2019
Appeals from the United States District Court for the Western District of Wisconsin. Nos. 0758 3:15CR00079-001 & 0758 3:17CR00046-001 William M. Conley, Judge. ARGUED APRIL 24, 2019 — DECIDED JULY 23, 2019
Before KANNE, HAMILTON, and ST. EVE, Circuit Judges.
I. Background
Hunt‘s supervised release began in 2016. He had pleaded guilty to failing to update his sex-offender registration.
The following year, Hunt was convicted of robbing a bank. During the robbery, he pointed a gun at people and threatened them verbally as well. He eventually pleaded guilty to the robbery,
At sentencing, Hunt asked the judge to recall his age (which was 56) and to give him a chance to be released before he dies. The judge gave Hunt a prison sentence totaling 154 months: 70 months for the robbery and 84 months for the
The new three-year term of supervised release on the bank robbery and firearm convictions came with conditions. The two that Hunt challenges on appeal also were among the conditions of his original term of release that the judge revoked. Critical to our waiver finding, before sentencing, Hunt received in the presentence investigation report all the proposed conditions of supervision. Then, both before and at sentencing, Hunt did not object to any of the proposed conditions, including the two that he now challenges. When the judge noted on the record that Hunt had not objected to any proposed condition of supervised release, Hunt did not disagree. Consistent with this on-the-record acquiescence, when the judge asked Hunt whether he wanted the judge to read the conditions for the record or to justify the conditions individually, Hunt told the judge that he need not do so. Finally, Hunt told the judge at the end of the hearing that there were no other issues to address.
The first challenged condition will prohibit Hunt from leaving “the judicial district in which defendant is being supervised without the permission of the Court or probation officer.” The other will require: “As directed by the probation officer, defendant shall notify third parties of risks that may be occasioned by defendant‘s criminal record or personal history or characteristics. The probation officer may also take steps to confirm defendant‘s compliance with this notification requirement or provide such notifications directly to third parties.” Hunt asks us to excuse his failure to object by finding that it was “plain error” to impose both conditions. The government responds that the first condition is error-free, and that on plain-error review this court should order the district court to clarify the condition requiring Hunt to “notify third parties of risks.”
II. Analysis
We begin by reviewing the difference between waived arguments and forfeited arguments. Waiver precludes appellate review. See United States v. Butler, 777 F.3d 382, 386–87 (7th Cir. 2015). Forfeited arguments may be reviewed for “plain error.” See United States v. Jenkins, 772 F.3d 1092, 1096 (7th Cir. 2014).
Waiver occurs when a defendant intends (by words or actions) to relinquish a known right. See United States v. Waldrip, 859 F.3d 446, 449 (7th Cir. 2017); United States v. Garcia, 580 F.3d 528, 541–42 (7th Cir. 2009). In the supervised release context, a strategic choice provides strong evidence of waiver, but the key consideration is a knowing and intentional decision, whether motivated by strategy or not. See United States v. Flores, — F.3d —, —, 2019 WL 2847453, at *4 (7th Cir. July 3, 2019) (in supervised release case, “evidence of a strategic reason not to object in the district court is a sufficient, but not a necessary, ground on which to find waiver“). By contrast, a defendant only forfeits an argument when he fails to assert a right in a timely fashion because of accident or neglect. See United States v. Burns, 843 F.3d 679, 685 (7th Cir. 2016).
In criminal cases, we ordinarily construe waiver principles liberally in favor of the defendant. See Butler, 777 F.3d at 387. That is why, at times, we have interpreted a defendant‘s silence in the face of objectionable conditions of supervised release as a forfeiture reviewable for plain error. See, e.g., United States v. Miller, 829 F.3d 519, 528–29 (7th Cir. 2016); United States v. Bickart, 825 F.3d 832, 839 (7th Cir. 2016). And that is also why, when a condition is so vague that it violates a defendant‘s right to due process of law, as in Adkins, we have been willing to overlook even a signed appellate waiver. See 743 F.3d at 192–93.
In Flores, we recently tried to clarify our approach to waiver and forfeiture in our recent wave of appeals challenging supervised release conditions for the first time on appeal. We held:
We will find waiver, as we do here, when the defendant has notice of the proposed conditions, a meaningful opportunity to object, and she asserts (through counsel or directly) that she does not object to the proposed conditions, waives reading of those conditions and their justifications, challenges certain conditions but not the one(s) challenged on appeal, or otherwise evidences an intentional or strategic decision not to object.
Id. at —, *6. Our decision in Flores took into account the fact that a defendant can always challenge a condition of supervised release under
Those conditions of waiver are all satisfied here. And in addition to the advance notice and all of the opportunities Hunt had to raise these issues, Hunt was already subject to the same conditions that he now wishes to challenge. He knew that they could be imposed and how they were enforced. Hunt also wanted to focus the sentencing decision on his arguments based on his age and his request to have a
In Flores, we also noted that we retain the discretion in compelling cases to overlook a party‘s waiver of a challenge to a condition of supervised release, as with a wide range of other issues. Id. at —, *5, discussing Adkins, 743 F.3d at 193 (relieving defendant of appellate waiver where vague condition of supervised release would unconstitutionally burden First Amendment rights and “no reasonable person could know what conduct is or is not proscribed“); see also United States v. Campbell, 813 F.3d 1016, 1019 (7th Cir. 2016) (distinguishing Adkins where defendant could have sought clarification in district court and challenged condition did not implicate First Amendment rights or “fundamental legitimacy of the judicial process“).
Even if we were to apply plain-error review to the conditions at issue here, we would not find plain error. We start with Hunt‘s objections to the condition preventing him from leaving the “judicial district.” Hunt asserts that “judicial district” is vague, but that is not correct. Defendants can readily and “objectively verif[y]” the boundaries of judicial districts by, for example, consulting
That leaves the condition requiring Hunt to notify “third parties” of “risks” “occasioned by [his] criminal record or personal history or characteristics.” We assume that the condition would benefit from further definition. See United States v. Canfield, 893 F.3d 491, 495 (7th Cir. 2018); Bickart, 825 F.3d at 841–42. But Hunt has not established that any definitional problem, if uncorrected by us at this time, would jeopardize the fairness, integrity, or public reputation of the criminal proceedings. See Miller, 829 F.3d at 530. Hunt retains the right to ask the district court to modify this condition under
We AFFIRM the judgment in appeal No. 18-1198. We DISMISS appeal No. 18-1197.