Case Information
*1 Before H AMILTON S CUDDER S T . E VE Circuit Judges . S T . E VE Circuit Judge
. appeal, Valerie chal lenges one as unconstitu tionally vague. She admits she chal lenge court, she asks error. rst step plain review, Su preme Court repeatedly said, ask whether intentionally relinquished now presents. Rosales Mireles States, S. Ct. ‐ 1904–05 (2018); Molina ‐ Martinez S. Ct. (2016); Olano U.S. (1993). This where Flores’s challenge fails. She had notice and make court, submi tt ed other challenges, she ffi rma tively reading their justi ca sentencing. Her failure amounts waiver, preclud ing review.
We recognize, address, some cases overlooked concerns reviewing super vised plain error. Those cases either presented compelling reasons forgiving waiver, which case does present, simply did address waiver, usually because government press it. empha size, Supreme Court has, threshold, context ‐ speci c inquiry ‐ review. Due waiver, ffi rm.
I January Wisconsin law enforcement learned via dential informants Flores her co
traveled California obtain methamphetamine transport back Wisconsin sell. Through cell phone, o ffi cers tracked co defendant, who were driving separate vehicles tandem. Police conducted tra c stops after co defendants returned Wisconsin. Searches their vehicles revealed more than pounds marijuana with street value approximately $1.8 million. grand jury returned indictment charging possession intent distribute kilograms more marijuana under U.S.C. § 841(a)(1). Because Flores had prior state conviction for felony drug o ff ense, and was supervision for that o ff ense the time of arrest, the government fi led information under U.S.C. § for enhanced penalties. Flores faced mandato ‐ ry minimum sentence of ten years and supervised term of eight years. U.S.C. § 841(b)(1)(B)(vii).
In July pleaded guilty. Using the Sentencing Guidelines Manual, the Pro ‐ bation O ffi ce prepared Flores’s Presentence Investigation Report, Revised Presentence Investigation Report, and ad ‐ dendum report (collectively “PSR”).
A tt ached PSR supervision plan listing standard and special release. At ‐ sue appeal standard condition #3 (employment condi ‐ tion), which stated: “Defendant shall maintain lawful em ployment, seek lawful employment, or enroll participate course study vocational training equip suitable employment, unless excused by pro bation o ffi cer Court.” In supervision plan, probation o ffi ce noted “defendant’s employment has been sporadic inconsistent,” “[s]he out standing nancial obligations.” probation o ce’s justi fi cation employment stated, part, “[e]vidence based practice research indicates lawful, stable employment education pro social activities reinforce rehabilitation defendant.” object PSR dis cuss issues writing before sentencing. Sep tember led objections, corrections, clari ca PSR. She not, however, any proposed release. couple weeks Fdatory minimum sentence to run concurrently with her state sentence. Again, Flores to any the pro posed release.
The district court conducted Flores’s sentencing hearing October At the beginning the hearing, the court asked Flores if she had the opportunity to read and discuss her original PSR, revised PSR, the addendum the report with her a tt orney. Flores responded yes. Next, sentencing court noted government had no objec PSR, Flores objected two level crease under U.S.S.G. § 2D1.1(b)(1) based maintaining premise manufacturing distributing controlled sub stance. The court discussed objection relevant conduct explaining amounts were included drug quantity analysis, therefore, had no impact un der guidelines.
Before imposing sentence, judge asked if there anything she would like add. Flores prepared wri tt en allocution, which read into record. She emphasized:
I want use time serving my sentence some major self improvement acquire skills college degree will serve me well I get home. Whatever outcome today ends up being, I take every advantage possible help my sobriety restart my life positive perception how things should be done rightfully.
After allocution, sentenced mandatory minimum months prison. recommended mental health treatment, drug abuse pro grams, and, consistent with Flores’s allocution, educational vocational training. Also, court directed that month federal sentence run concurrently with bal ‐ ance state revocation sentence.
The court further sentenced manda tory eight years adopting con ditions set forth supervision plan, including em ployment condition. The fi rst noted that neither government nor objected these conditions. then stated:
[T]he primary goals are assist defendant’s transition back into community after term imprisonment provide rehabilitation. That will be crucial this defendant. Supervision case provide typical needed programming, including rehabilita tive programs, assist community reintegra tion, ff ord supervision necessary deter protect against further criminal acts perpetrated by defendant.
…
I’m dent along sporadic em ployment outstanding nancial obligations I more than amply justi ed being imposed. But as counsel aware, there’s some question whether I should put each record verbatim justify them indi vidually. And I’m happy do unless fense wishes waive my doing so.
Defense counsel responded: “We do waive, Your Honor. Thank you.”
The continued “when defendant released from con nement, understanding that will be ten years from now or thereabouts, [if] either defendant or supervis ing probation o cer should believe any condi imposed today are no longer appropriate, they should petition Court for review.” district entered judgment October 2018, Flores led timely notice appeal.
II
On appeal, Flores argues dition requiring “maintain lawful employment, seek lawful employment, enroll participate course study vocational training equip for suitable employment” unconstitutionally vague. speci cally takes issue word “suitable.”
We begin di ff erence between forfeiture waiver. Waiver occurs when party intentionally relinquish es known right forfeiture arises party inad vertently fails argument court. Olano U.S. at 733; Waldrip 2017). We review forfeited arguments plain error, whereas extinguishes precludes ap pellate review. Olano U.S. Waiver forfeiture related, distinct, concepts, although times confused terms. Waldrip 450; Richardson
Because challenged super vised court, parties assert should argument error. dis 18 ‐ 3249 7 agree. For ‐ apply, “there must be an er ror been intentionally relinquished aban doned.” Molina ‐ Martinez , 136 S. Ct. at 1343 (citing Olano , 507 U.S. at 732 33); see also Rosales Mireles, 138 S. Ct. at 1904 ‐ 05 ; United States v. Young , 908 241, 246 (7th Cir. 2018). Ap plying well known principles, record makes clear waived her employment condition.
In general, criminal defendants must make informed decisions waiving their rights. New York v. Hill U.S. 110, 114 (2000); Olano 507 U.S. at 733. Even “[t]he most basic rights of criminal defendants … subject waiver[,]” Pere tz v. United States U.S. 923, (1991), but “[w]hat su ces for waiver depends nature of right issue.” Hill U.S. “For fundamental rights, defendant must personally make informed waiver,” but other rights, “waiver may be a ff ected by ac tion counsel.” Id. ; see also United States v. Babul Our waiver inquiry, therefore, varies depending right issue circumstances case. context guilty plea, example, because waiving several fundamental rights, her
must clear high bar. v. Brady U.S. (1970). When accepting guilty plea, judge must “conduct long, searching colloquy” ensure properly constitutional rights. Harden 2014); see also Fed. R. Crim. P. 11(b). Similarly, defendant’s Sixth Amendment right assistance counsel must only be knowing intelligent, unequivocal. Iowa Tovar *8 8 18 3249 541 U.S. 77, 88 (2004); Fare tt v. California , 422 U.S. 806, 835 (1975). There, too, the district court must directly engage defendant to rm waiver was knowing intelligent.
Not every waiver must meet such stringent criteria. A de waives right jury instructions if approved instructions at district court. United States v. Caguana 884 F.3d 681, 689 (7th Cir. 2018); United States v. Gri ffi n F.3d 912, (7th Cir. 1996). “We do require defendant personally waive objection, nor is district required address question di rectly defendant.” Gri n, F.3d
Waiver most sentencing issues similar. United States v. St. Clair ‐‐‐ F.3d ‐‐‐‐ WL 2399597, *2 (7th Cir. June 7, 2019). We have observed there no rigid rule nding in context. United States v. Butler (7th Cir. 2015). Instead, address each omission light surrounding circumstances determine whether defendant’s decision was knowing tentional. Id .; United States v. Garcia 2009).
We often nd such intent where chose—as ma tt er strategy—not present related ar gument court. See, e.g. Bloch strategic is, course, one, recognize defendants often waive sentencing arguments bargaining prosecution focusing other, more pressing issues. thus inferred fendant’s choice objections sentencing, others, strategic intentional. 18 3249 9 Tjader , ‐‐‐ F.3d ‐‐‐‐ , 2019 WL 2441073, at *2 (7th Cir. June 12, 2019); United States v. Gumila F.3d 831, 838 (7th Cir. 2018). Indeed, a defendant’s “decision to single out ob ‐ ject to only one is very ‘[t]ouchstone of waiver,’ it indicates ‘a knowing intentional decision.’” Bloch F.3d (citation omi tt ed). have found defendant a targeted sentencing strategy led him waive other arguments. See United States v. Barnes F.3d 955, 957–58 (7th Cir. 2018); United States v. Walton F.3d 437, (7th Cir. 2001). All stands a straightforward proposition: context release conditions, evidence of a strategic rea ‐ son in district is su cient, necessary, ground on which nd waiver, because re fl ects an intentional decision on defendant’s part.
Moreover, speci c context conditions, have provided guidance ensure defendants make intentional informed decisions—decisions could eliminate review based waiver. United States v. Lewis 1081–82 (7th Cir. 2016). As explained Lewis “[t]he foundation these limits ap pellate is judge needs ensure parties fair genuine objec court.” Id .
An important factor giving opportuni ty make informed about su pervised advance notice condi tions. Gabriel 2016); Kappes 842–43 “The goal providing parties advance no tice issue allow parties pre sent an informed response.” Kappes 843. We re cently clarified why advance notice is necessary making an informed decision: who receives advance notice of
proposed conditions of supervised release has both the bene t advice of counsel full oppor tunity raise objections about arguably vague or unjusti ed supervised release. Sen tencing the court the time such issues, not appeal, rst time.
St. Clair WL *2.
Last, most obvious, concluded that intentionally challenge his condition when he “affirmatively told that he had no objection” challenged condition. Smith 2018); see Schrode 2016) (affirmative withdrawal objections chal lenged constitutes waiver). Smith when dis cussing defendant’s relinquishment, reasoned that “district expressly invited objections proposed visitation condition, Smith’s attorney, benefit having seen condition advance, responded that was ‘reasonable.’” Id . further articulated “Smith argued either he his attorney confused response did indicate approval.” Id.
Applying these principles circumstances our case, record clear made deliberate formed employ ment condition. She 3249 11 to probation office’s recommendations her attorney in advance sentencing, at her sentencing hearing, judge ensured reviewed these counsel. See St. Clair WL at *2; Gabriel F.3d 814. Counsel filed written objec PSR prior to sentencing, objecting to relevant conduct calculation guideline enhancement, but not employment condition. We can reasonably infer from Flores’s choice objections, not others, her decision was strategic intentional. See Gumila F.3d at 838.
Flores’s decision waive explanation reading further confirms her in tent. Tjader WL at *2; Bloch F.3d at 872–73. So, too, does record whole. Flores’s allocution re flects her desire engage in meaningful employment educational training restart her life positive manner once has served her sentence—another indication her employment strategic. See Barnes
Due relinquishment right appeal claimed error, we are precluded from reviewing argument. Young (“An ap pellate need consider claimed if issue been waived.”). affirm this basis.
B so holding, we aware inconsistencies our
case law we always applied context. To start, because liberally construe fa vor defendants, see Butler were willing *12 12 No. 18 3249 exercise our discretion overlook signed waiver in rare limited instance when unconstitutionally vague overbroad in pro hibited activities protected by First Amendment “no reasonable person could know what conduct is permitted what is prohibited[,]” in United States v. Adkins , 743 F.3d 176, 193 (7th Cir. 2014). United States v. Campbell , 813 F.3d 1016, 1018 (7th Cir. 2016). In other cases, did not address waiver light intervening changes in prompted by our United States v. Thompson 777 F.3d 368 (7th Cir. 2015). See, e.g., United States v. Gill, 824 F.3d 653, 661 (7th Cir. 2016); United States v. Pou lin F.3d 924, 930–31 (7th Cir. 2016). Neither concern is present here. other decisions, simply did not address waiver
when applying plain review. See, e.g., Kappes F.3d 844; v. Ross F.3d (7th Cir. 2007); McKissic 721–22 2005). None these cases, however, held not apply this context. At most, they assumed forfeiture gov erned. It well established “that unexamined assump prior cases do control disposition tested issue.” Stanek St. Charles Cmty. Unit Sch. Dist. And our earlier as sumptions do withstand scrutiny, Supreme Court, like us, made clear threshold considera tion reviewing error. Olano U.S. 733; Young make point again today. When does address
court, assess whether those chal ‐ lenges. find waiver, as we do here, when the notice proposed conditions, meaningful to object, she asserts (through counsel or directly) that does not proposed conditions, waives reading those conditions their justifications, challenges but not one(s) challenged appeal, otherwise evidences strategic object.
C
On final note, oral argument, government articu lated it relied our prior cases asserting plain ‐ error review applied. See, e.g., Poulin 930– counsel countered government its waiver defense by agreeing plain error review. Normally, we would enforce government’s waiver, we are obligated do so. Combs 2011) (per curiam); Schmidt
Here, we decline enforce government’s due inconsistencies our case law regarding plain error context, discussed direct ly above, our previous confusion over terms forfei ture waiver. Further, face recent influx challenges before this where such were challenged before dis trict court, compelled emphasize part our review.
III court gave Flores every make challenge makes now appeal. Flores expressly
clined. That precludes our review, does permanently bind Flores. long assumed proba tion officers work defendants, against them, help defendants transition back into society after prison. They do not, must not, nitpick defendants seek reprimands or revocations over small, unreasonable concerns. There another safety valve as well, even defendants who waive challenges direct appeal. Should condi prove too onerous ill defined, or should circum stances change during incarceration after release, U.S.C. § 3583(e)(2) allows defendants like Flores petition modification their ditions, properly informed here.
For today, however, intentionally right employment condition, so affirm.
[1] Before issuing this opinion, circulated all judges active service under Circuit Rule 40(e). No judge voted hear case en banc .