United States v. Flores, 18-3249

• Decision Date: 03 July 2019
• Docket Number: No. 18-3249,18-3249
• Citation: 929 F.3d 443
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Valerie FLORES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

929 F.3d 443

UNITED STATES of America, Plaintiff-Appellee,

v.Valerie FLORES, Defendant-Appellant.

No. 18-3249

United States Court of Appeals, Seventh Circuit.

Argued May 22, 2019

Decided July 3, 2019

Robert A. Anderson, Attorney, Office of the United States Attorney, Madison, WI, for Plaintiff-Appellee

Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant

Before Hamilton, Scudder, and St. Eve, Circuit Judges.

St. Eve, Circuit Judge.

In this appeal, Valerie Flores challenges one condition of her supervised release as unconstitutionally vague. She admits that she did not raise the challenge in the district court, but she asks that we review it for plain error. The first step in plain-error review, as the Supreme Court has repeatedly said, is to ask whether the defendant intentionally relinquished the challenge she now presents. See Rosales-Mireles v. United States, ––– U.S. ––––, 138 S. Ct. 1897, 1904–05, 201 L.Ed.2d 376 (2018) ; Molina-Martinez v. United States , ––– U.S. ––––, 136 S. Ct. 1338, 1343, 194 L.Ed.2d 444 (2016) ; United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). This is where Flores’s challenge fails. She had notice and opportunity to make the challenge in the district court, she submitted other sentencing challenges, and she affirmatively waived reading of the conditions and their justifications at sentencing. Her failure amounts to waiver, precluding appellate review.

We recognize, and will address, that in some cases we have overlooked waiver concerns when reviewing supervised release conditions for plain error. Those cases either presented compelling reasons for forgiving waiver, which this case does not present, or simply did not address waiver, usually because the government did not press it. We emphasize, as the Supreme Court has, that waiver is a threshold, context-specific inquiry in plain-error review. Due to Flores’s waiver, we affirm.

I

In January 2018, Wisconsin law enforcement learned via confidential informants that Flores and her co-defendant had traveled to California to obtain methamphetamine and transport it back to Wisconsin to sell. Through her cell phone, the officers tracked Flores and her co-defendant, who were driving separate vehicles in tandem. Police conducted traffic stops after the co-defendants returned to Wisconsin. Searches of their vehicles revealed more than 300 pounds of marijuana with a street value of approximately $1.8 million.

A grand jury returned an indictment charging Flores with possession with the intent to distribute 100 kilograms or more of marijuana under 21 U.S.C. § 841(a)(1). Because Flores had a prior state court conviction for a felony drug offense, and was on supervision for that offense at the time of her arrest, the government filed an information under 21 U.S.C. § 851 for enhanced penalties. Flores faced a mandatory minimum sentence of ten years and a supervised release term of eight years. See 21 U.S.C. § 841(b)(1)(B)(vii).

In July 2018, Flores pleaded guilty. Using the 2016 United States Sentencing Guidelines Manual, the United States Probation Office prepared Flores’s Presentence Investigation Report, Revised Presentence Investigation Report, and addendum to the report (collectively "PSR").

Attached to the PSR was the supervision plan listing the standard and special conditions of supervised release. At issue on appeal is standard condition #3 (employment condition), which stated: "Defendant shall maintain lawful employment, seek lawful employment, or enroll and participate in a course of study or vocational training that will equip defendant for suitable employment, unless excused by the probation officer or the Court." In Flores’s supervision plan, the probation office noted that "defendant’s employment has been sporadic and inconsistent," and also "[s]he has outstanding financial obligations." The probation office’s justification for the employment condition stated, in part, "[e]vidence based practice research indicates that lawful, stable employment and education are pro-social activities that reinforce the rehabilitation of defendant."

Flores had the opportunity to object to the PSR and discuss sentencing issues in writing before sentencing. In September 2018, she filed objections, corrections, and clarifications to the PSR. She did not, however, object to any of the proposed conditions of supervised release. A couple weeks later, she filed a sentencing memorandum seeking the mandatory minimum sentence to run concurrently with her state sentence. Again, Flores did not object to any of the proposed conditions of supervised release.

The district court conducted Flores’s sentencing hearing in October 2018. At the beginning of the hearing, the court asked Flores if she had the opportunity to read and discuss her original PSR, the revised PSR, and the addendum to the report with her attorney. Flores responded yes. Next, the sentencing court noted that the government had no objections to the PSR, but that Flores objected to the two-level increase under U.S.S.G. § 2D1.1(b)(1) based on maintaining a premise for manufacturing or distributing a controlled substance. The court also discussed Flores’s objection to relevant conduct explaining that the amounts were not included in the drug quantity analysis, and therefore, had no impact under the sentencing guidelines.

Before imposing her sentence, the district judge asked Flores if there was anything she would like to add. Flores had prepared a written allocution, which she read into the record. She emphasized:

I want to use this time serving my sentence for some major self-improvement and to acquire skills and a college degree that will serve me well when I get home. Whatever the outcome of today ends up being, I will take every advantage and opportunity possible to help with my sobriety and restart my life with a positive perception on how things should be done rightfully.

After her allocution, the district court sentenced Flores to the mandatory minimum of 120 months in prison. The court recommended mental health treatment, drug abuse programs, and, consistent with Flores’s allocution, educational and vocational training. Also, the court directed that Flores’s 120 month federal sentence run concurrently with the balance of her state revocation sentence.

The district court further sentenced Flores to the mandatory eight years of supervised release adopting certain conditions set forth in the supervision plan, including the employment condition. The court first noted that neither the government nor Flores had objected to these conditions. The court then stated:

[T]he primary goals of supervised release are to assist the defendant’s transition back into the community after a term of imprisonment and to provide rehabilitation. That will be crucial to this defendant. Supervision in this case will provide the typical needed programming, including rehabilitative programs, assist with community reintegration, and afford supervision necessary to deter and protect against further criminal acts perpetrated by the defendant.

...

I’m confident that along with her sporadic employment and outstanding financial obligations that I have more than amply justified the conditions that are being imposed. But as counsel is aware, there’s some question as to whether I should put each on the record verbatim and justify them individually. And I’m happy to do that unless the defense wishes to waive my doing so.

Defense counsel responded: "We do waive, Your Honor. Thank you."

The court continued "when the defendant is released from confinement, understanding that will be ten years from now or thereabouts, [if] either the defendant or the supervising probation officer should believe that any of the conditions imposed today are no longer appropriate, they should petition the Court for review."

The district court entered judgment on October 9, 2018, and Flores filed a timely notice of appeal.

II

On appeal, Flores argues that the supervised release condition requiring her to "maintain lawful employment, seek lawful employment, or enroll and participate in a course of study or vocational training that will equip defendant for suitable employment" is unconstitutionally vague. Flores specifically takes issue with the word "suitable."

A

We begin with the difference between forfeiture and waiver. Waiver occurs when a party intentionally relinquishes a known right and forfeiture arises when a party inadvertently fails to raise an argument in the district court. Olano , 507 U.S. at 733, 113 S.Ct. 1770 ; United States v. Waldrip , 859 F.3d 446, 450 (7th Cir. 2017). We review forfeited arguments for plain error, whereas waiver extinguishes error and precludes appellate review. Olano , 507 U.S. at 733, 113 S.Ct. 1770. Waiver and forfeiture are related, but distinct, concepts, although at times we have confused the terms. Waldrip , 859 F.3d at 450 ; United States v. Richardson , 238 F.3d 837, 841 (7th Cir. 2001).

Because Flores did not object to the challenged supervised release condition in the district court, the parties assert that we should review her argument for plain error. We disagree. For plain-error review to apply, "there must be an error that has not been intentionally relinquished or abandoned." Molina-Martinez , 136 S. Ct. at 1343 (citing Olano , 507 U.S. at 732-33, 113 S.Ct. 1770 ); see also Rosales-Mireles, 138 S. Ct. at 1904-05; United States v. Young , 908 F.3d 241, 246 (7th Cir. 2018). Applying well-known principles, the record makes clear that Flores waived her appellate challenge to the employment condition.

In general, criminal defendants must make informed and intentional decisions when waiving their rights. New York v. Hill , 528 U.S. 110, 114, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000) ; Olano , 507 U.S. at 733, 113 S.Ct. 1770. Even "[t]he most basic rights of criminal defen...