U.S. v. Sines

• Citation: 303 F.3d 793
• Decision Date: 12 September 2002
• Docket Number: No. 01-3376.,01-3376.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stephen R. SINES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

303 F.3d 793

UNITED STATES of America, Plaintiff-Appellee, v. Stephen R. SINES, Defendant-Appellant.

No. 01-3376.

United States Court of Appeals, Seventh Circuit.

Argued January 16, 2002.

Decided September 12, 2002.

COPYRIGHT MATERIAL OMITTED

Susan H. Dowd, Steven D. DeBrota (Argued), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.

Linda M. Wagoner (Argued), Indianapolis, IN, for Defendant-Appellant.

Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

ILANA DIAMOND ROVNER, Circuit Judge.

After Stephen R. Sines pled guilty to bank fraud and mail fraud, the district court sentenced him to eighteen months in prison followed by a five-year term of supervised release. Mr. Sines objects to the following two conditions of his supervised release: first, that he attend an intensive sex offender treatment program requiring periodic polygraph testing, and second, that he refrain from contact with his former roommate, William S. Henry. The district court upheld both conditions of his supervised release. We affirm.

I.

While on supervised release following a 1991 conviction for sexual exploitation of a child and mail fraud, Stephen Sines pled guilty to a charge of bank fraud for engaging in a check-kiting scheme and to a charge of mail fraud for illegally obtaining and using a credit account. By committing these crimes, Mr. Sines violated the terms of his supervised release, and, as a result, his supervision was revoked and he was sentenced to an additional twelve months' imprisonment. That same day, the district court sentenced him to eighteen months in prison followed by five years of supervised release for the new bank fraud and mail fraud charges. The district judge imposed several conditions on his supervised release on these charges, two of which are the subject of this appeal. First, the district judge ordered that he participate in a program of treatment for sex offenders. This condition was imposed, in part because, while in a sexual offender treatment program in prison for the 1991 charges, Mr. Sines admitted to having sexual contact with approximately two dozen minors. Second, the district judge imposed a standard provision that Sines not associate with any person convicted of a felony unless granted permission to do so by the probation officer.

As part of the plea agreement, Mr. Sines waived his right to appeal the conviction and sentence imposed on any ground and agreed not to contest his sentence in any manner, including by collateral attack.

One wrinkle emerged regarding the condition involving sex offender treatment. According to the transcript of the September 17, 1999 sentencing for the bank and mail fraud charges, the district court judge stated, "The defendant shall participate in an approved sex offender treatment program, including periodic progress as directed by the probation office." (9/17/99 Tr. at 19) (emphasis added). The written judgment stated, "The defendant shall participate in a program of treatment for sex offenders, including periodic polygraph examinations, as directed by the probation officer." (R. 12) (emphasis added).

Mr. Sines began serving the term of his supervised release on January 3, 2001. His probation officer assigned him to an intensive sex offender treatment program which requires participants to take periodic polygraph examinations to ensure that they are participating fully and honestly in the program. Mr. Sines objected to the assignment and refused to participate on the following bases: (1) he had already completed an intensive sex offender treatment program during his previous incarceration, (2) he had not engaged in any illegal sexual contact with anyone since 1990, (3) the condition was not reasonably related to his rehabilitation and to the protection of the public from future crimes, and (4) the condition of requiring periodic polygraph examinations was not part of the original sentence.¹ Based on his refusal to participate, the government petitioned the court to revoke Mr. Sines' supervised release.

On May 30, 2001, the magistrate judge held a hearing on the government's petition to revoke supervised release. During the course of that hearing, Mr. Sines also objected to the fact that his probation officer had prohibited him from having any contact with his former roommate, William Henry. At approximately the same time Mr. Sines was arrested and convicted of sexual exploitation of a child, Mr. Henry was convicted in the State Court of Indiana of the misdemeanor charge of possessing child pornography, based on his possession of a videotape portraying Mr. Sines engaged in illegal sexual acts with a minor. Apparently there was some confusion on the part of the probation officer, and then on the part of the magistrate judge, as to whether Mr. Henry had been convicted of a felony — which would have made him a prohibited contact by the terms of Mr. Sines' existing supervised release order — or a misdemeanor.² After the hearing on revocation of supervised release, the magistrate judge recommended revising the terms of the supervised release to prohibit Mr. Sines from associating with Mr. Henry. He also found that, under the terms of the defendant's original sentencing, Mr. Sines was required to attend a sex offender treatment program with periodic polygraph examinations. On August 24, 2001, the district court judge held a hearing on the objections to the adoption of the magistrate's report and recommendation. At the conclusion of that hearing, the court accepted the magistrate's recommendation regarding both the sex offender treatment program and the prohibition on contact with Mr. Henry. Mr. Sines appeals.

II.

A. The sex offender treatment program.

Mr. Sines objects to the special condition of his sentence of supervised release requiring him to attend a sex offender treatment program which includes periodic progress checks via polygraph testing. However, Mr. Sines knowingly and voluntarily entered into a plea agreement with the government, and in exchange for the deal offered to him, Mr. Sines agreed not to appeal, on any grounds, his conviction or the sentence imposed by the judge.

The relevant portions of that plea agreement are as follows:

STEPHEN R. SINES understands that he has a statutory right to appeal the conviction and sentence imposed and the manner in which the sentence was determined. Acknowledging this right and in exchange for the concessions made by the United States in this plea agreement, STEPHEN R. SINES agrees that in the event the Court sentences STEPHEN R. SINES to a sentence within the sentencing guidelines, at an offense level of thirteen (13) or below, STEPHEN R. SINES expressly waives his right to appeal the conviction and sentence imposed on any ground, including the right to appeal conferred by Title 18, United States Code, Section 3742. Additionally, STEPHEN R. SINES also expressly agrees not to contest his sentence or the manner in which it was determined in any collateral attack, including but not limited to, an action brought under Title 28, United States Code, Section 2255.

(R. 3)

A waiver is the intentional relinquishment or abandonment of a known right. United States v. Sumner, 265 F.3d 532, 537 (7th Cir.2001). This court has held many times that a voluntary and knowing waiver of an appeal is valid and must be enforced. United States v. Hare, 269 F.3d 859, 860 (7th Cir.2001); United States v. Behrman, 235 F.3d 1049, 1051 (7th Cir.2000); Jones v. United States, 167 F.3d 1142, 1144 (7th Cir.1999); United States v. Woolley, 123 F.3d 627, 631-32 (7th Cir.1997); United States v. Ogden, 102 F.3d 887, 889 (7th Cir.1996); United States v. Wenger, 58 F.3d 280, 281 (7th Cir.1995). An effective waiver extinguishes the claim of error and precludes appellate review. United States v. Williams, 272 F.3d 845, 855 (7th Cir.2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1339, 152 L.Ed.2d 243 (2002). We note, however, that a waiver does not, in every instance, foreclose review. Jones, 167 F.3d at 1144. A defendant does not lose the right to pursue a claim that relates directly to the negotiation of the waiver, such as a claim that the waiver was involuntarily made, was based on an impermissible factor such as race, exceeds the statutory maximum, or was made without effective assistance of counsel. Id. at 1144-45. Furthermore, this court has been careful to enforce waivers only to the extent of the agreement. Bridgeman v. United States, 229 F.3d 589, 591-92 (7th Cir.2000); Behrman, 235 F.3d at 1052. Unlike the defendant in Behrman, however, who only waived his right to appeal "any sentence within the maximum provided in the statute(s) of conviction" — and thus did not waive his right to appeal the restitution imposed by the court — Mr. Sines waived his right to appeal any portion of his sentence (provided the sentence was within the sentencing guidelines, at an offense level of thirteen or below).

In this case, Mr. Sines does not claim that the waiver was involuntarily made, was based on an impermissible factor, exceeded the statutory maximum, or was made without effective assistance of counsel. Mr. Sines objects to the conditions imposed by the sex offender treatment program on the basis that he has already completed an intensive sex offender treatment program, he has not engaged in any illegal contact in over ten years, and that the program is not reasonably related to his rehabilitation or to the protection of the public. Mr. Sines, however, waived the right to make these arguments when he signed the plea agreement.

Mr. Sines claims that he effectively objected to the requirement of sexual offender treatment at the September 17, 1999 hearing on the plea and disposition when, after he was remanded to the custody of the United States Marshal, his counsel stated, "Judge, if I might, with regard to the sex offender treatment, he has already completed that under the previous sentence." (9/17/99 Hg. Tr. ...