United States v. Armour
| Decision Date | 26 October 2015 |
| Docket Number | No. 15–1604.,15–1604. |
| Citation | 804 F.3d 859 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Charles W. ARMOUR, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Jason M. Bohm, Attorney, Office of the United States Attorney, Urbana, IL, Gregory Harris, Office of the United States Attorney, Springfield, IL, for Plaintiff–Appellee.
Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, for Defendant–Appellant.
Before FLAUM, WILLIAMS, and HAMILTON, Circuit Judges.
In 2008, Charles Armour was sentenced to fifty-one months in prison and a three-year term of supervised release after he pled guilty to possession of a firearm by a felon. After he was released from prison in 2012, Armour violated the conditions of his supervised release in several incidents, including a conviction of aggravated battery for beating his eight-year-old son. Accordingly, his probation officer submitted to the district court a petition to revoke Armour's supervised release and a violation memorandum detailing Armour's most recent infractions. The district court then sentenced Armour to twenty-four months in prison followed by a one-year term of supervised release. Armour now appeals, challenging his new sentence and the conditions of his supervised release. We affirm.
When Armour pled guilty to possession of a firearm by a felon in 2008, he had a criminal history category VI, six felony convictions, a total adjusted offense level of seventeen, and an advisory guidelines range of fifty-one to sixty-three months in prison. The district court sentenced Armour to fifty-one months of imprisonment followed by three years of supervised release.
The conditions of Armour's supervised release prohibited him from, among other things, committing another crime, leaving the district court's jurisdiction without permission from his probation officer, and unlawfully using a controlled substance.
Armour began his term of supervised release on October 23, 2012, and he began violating the conditions of his release shortly thereafter. On January 31, 2013, Armour was arrested for failure to comply with a lawful request in Missouri after he ran from police officers who caught him trespassing in a resident's yard at 3:27 AM, and he pled guilty to this offense on April 4, 2013. Armour did not obtain authorization before traveling to Missouri, and therefore, had left the jurisdiction without authorization. Between June and September 2013, Armour submitted four urine samples that tested positive for marijuana. In April 2014, Armour beat his eight-year-old son with a belt and belt buckle, resulting in a conviction of two counts of aggravated battery and a sentence of seven years in prison.
In May 2014, U.S. Probation Officer Thomas Brown submitted to the district court a petition to revoke Armour's supervised release, pointing to Armour's beating of his son as the basis for revocation. The district court granted the petition and issued an arrest warrant for Armour. On August 20, 2014, Armour made an initial appearance before a magistrate judge, who released Armour on bond pending a revocation hearing. As a condition of his release on bond, Armour was ordered to reside with a third-party custodian and prohibited from having contact with any minor children. On October 29, 2014, Armour's probation officer petitioned to have Armour's bond revoked, alleging that he violated the conditions of his bond by having contact with his minor children. On November 3, 2014, the magistrate judge held a hearing and allowed Armour to modify the conditions of his release to permit him to stay with his sister-in-law, instead of with his previous third-party custodian. However, when U.S. Probation Officer Sarah Dykstra visited Armour at his sister-in-law's home on February 11, 2015, Armour said that his sister-in-law had moved to Iowa and was no longer living with Armour.
On February 23, 2015, Officer Brown filed a violation memorandum with the district court. In addition to the “Violation Conduct” section, which detailed the aggravated battery conviction that was the basis of the revocation petition, the violation memorandum contained a “Supervision History” section, which stated that Armour had been arrested in Missouri, had left the district court's jurisdiction without permission, and had submitted four urine specimens that tested positive for marijuana. The violation memorandum also stated that Armour had failed to reside with a third-party custodian, thus violating a condition of his release on bond, and it recommended several supervised release conditions. Officer Brown attached to the violation memorandum the original presentence investigation report (“PSR”), which was prepared by U.S. Probation Officer Michelle Cyrus prior to Armour's 2008 sentencing for possession of a firearm by a felon.
On February 26, 2015, Armour filed a Commentary on Revocation conceding that he had violated a condition of supervised release and waiving his right to contest the allegations in the revocation petition. In this filing, Armour refers to the violation memorandum twice but does not object to the filing of or the facts contained in the violation memorandum. The Commentary on Revocation objects to the imposition of any further term of supervised release and “to any and all discretionary conditions,” and it makes specific objections to several of the proposed conditions of supervised release.
At his revocation hearing on March 9, 2015, Armour reaffirmed his decision to waive a hearing on the revocation petition. The district court asked Armour if he “reviewed [the violation memorandum] and had a chance to talk to [his] attorney about it,” and Armour responded, “[y]es, Your Honor.” The district court asked about Armour's objections to the violation memorandum, and Armour's counsel responded that all of his objections “go to the conditions of supervised release.” The government said it had no objection to the violation memorandum, and the district court adopted the factual findings of the violation memorandum as its own.
At this hearing, Armour requested a twelve-month sentence with no supervised release, but the district court agreed with the government's recommendation and sentenced Armour to twenty-four months in prison and a one-year term of supervised release. After the district court orally pronounced the conditions of Armour's supervised release, Armour objected to all of them. Armour now appeals, challenging his sentence and the following conditions of his supervised release:
On appeal, Armour challenges the filing of the violation memorandum by Officer Brown and the district court's adoption of the facts contained within it. Armour focuses his argument on certain facts in the violation memorandum, including that he was arrested in Missouri, left the jurisdiction without authorization, tested positive for marijuana, and did not reside with a third-party custodian when he was released on bond. Armour argues that because these facts were not asserted in the revocation petition as bases to revoke supervised release and because the district court did not determine the reliability of the information in the violation memorandum, the district court erred in relying on these facts at sentencing.
However, Armour never raised these arguments before the district court even though he had the opportunity to do so, and thus they are waived. “Waiver occurs when a criminal defendant intentionally relinquishes a known right.” United States v. Brodie, 507 F.3d 527, 530 (7th Cir.2007) (citations and internal quotation marks omitted). “Waiver of a right extinguishes any error and precludes appellate review....” Id.
We recognize that “a lawyer's statement at sentencing that the defendant does not object to anything in the presentence report does not inevitably constitute a waiver....” United States v. Jaimes–Jaimes, 406 F.3d 845, 848 (7th Cir.2005). However, “[t]he touchstone of waiver is a knowing and intentional decision.” Id. Therefore, when a criminal defendant selects among arguments as a matter of strategy, he waives the arguments he decides not to present. Id.
The facts of this case resemble those in Brodie, which held that the defendant, Brodie, waived his right to object to his sentence because Brodie had access to the presentence report and knew of his right to object. 507 F.3d at 531. After his conviction, Brodie objected to...
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