In the

United States Court of Appeals

for the Seventh Circuit

____________________ 

No. 23-1294 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

OTHO HARRIS, 

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division. 

No. 1:19-CR-00916(1) — John J. Tharp, Jr., Judge. 

____________________ 

ARGUED MARCH 5, 2024 — DECIDED MAY 23, 2024

____________________ 

Before SYKES, Chief Judge, and LEE and KOLAR, Circuit 

Judges. 

SYKES, Chief Judge. In September 2019 Otho Harris visited

a Boost Mobile store for assistance with his broken cellphone. 

He became enraged when he was told that it could not be repaired. He returned in the middle of the night and set fire to 

the store, causing extensive damage. Harris was charged with 

arson in violation of 18 U.S.C. § 844(i). After difficult relationships with three different appointed attorneys, he opted to 
2 No. 23-1294 

represent himself and eventually pleaded guilty. He was sentenced to eight years in prison and ordered to pay $195,701 in 

restitution. 

Represented by counsel on appeal, Harris challenges only 

the restitution order, arguing that it was not supported by a 

proper investigation and determination of the loss amount. 

The presentence report (“PSR”) and the government’s written 

version of the offense incorporated a 13-page insurance claim 

prepared by the victim’s insurer itemizing the losses from the 

fire. Harris never objected to this accounting of the loss 

amount. Quite the opposite: he had an opportunity to review 

these materials before sentencing, assured the judge that he 

had done so, and affirmed the accuracy of the factual material

in the PSR. 

Having confirmed the accuracy of the facts in the PSR, 

which included the insurance company’s documentation of 

the victim’s losses, Harris cannot now contest the restitution 

amount. Even if he forfeited rather than waived this restitution challenge, we see no basis for reversal under the plainerror standard. We affirm the judgment.

I. Background 

On September 9, 2019, Harris took his broken cellphone to 

a Boost Mobile store in Chicago to see if it could be repaired. 

He became angry when a store employee told him that the 

phone had sustained water damage and could not be fixed. 

Harris hurled his phone to the floor and left the store. He returned that night—more precisely, at about 4:30 a.m. on September 10—and set fire to the store. He first threw an object 

at the glass front door, breaking it. He then poured gasoline 

through the broken door, lit the accelerant, and fled the scene 
No. 23-1294 3 

when the flames started. The store was heavily damaged in 

the fire.

In December 2019 a federal grand jury returned an indictment charging Harris with one count of arson in violation of

§ 844(i), which makes it a federal crime to set fire to a building 

used in an activity affecting interstate commerce. The case 

moved very slowly. For two years, Harris had trouble establishing a productive relationship with his appointed counsel. 

The district court appointed three different attorneys, but 

Harris had disagreements with each one. When the third appointed lawyer moved to withdraw, he explained that Harris

now wanted to represent himself. After holding a hearing on 

the motion, the judge determined that Harris knowingly and 

voluntarily waived his right to counsel and could represent 

himself.

Over the next year, Harris filed numerous pretrial motions 

and requests with the court. A few weeks before the scheduled trial date, he agreed to plead guilty and signed a written 

plea agreement with the government. As relevant here, he 

acknowledged in the agreement that his sentence must include an order of full restitution to the victims of the crime

(including insurance companies) in an amount to be determined by the court. The judge accepted his guilty plea and set 

the case for sentencing. 

The probation office filed a presentence report about a 

month before the sentencing hearing. It included a description of the financial impact of Harris’s crime on two victims—

the owner of the Boost Mobile store and his insurer—in the 

total amount of $195,701. The PSR incorporated the insurance 

company’s 13-page claim report, a copy of which was attached to the government’s written version of the offense. 
4 No. 23-1294 

This document provided a detailed itemization of the store’s 

losses, which included telecommunications devices and accessories for sale, business equipment, and office fixtures.

The available insurance coverage was quite limited: the 

store owner’s policy limit was just $35,000, which the insurer

reached after appraising 33 of 104 items included in the claim.

The insurance company paid its full policy limit to the store 

owner, so the probation officer recommended that the court 

order Harris to pay $35,000 to the insurer and the balance—

$160,701—to the store owner. 

At the sentencing hearing, the judge confirmed that Harris

had received and reviewed the PSR and the government’s 

version of the offense. The judge also confirmed that Harris 

had not submitted any objections or arguments in opposition 

to the factual matters in the PSR. The judge then asked Harris 

if he was satisfied with the accuracy of the factual information 

in the PSR. Harris said yes.

After confirming the statutory minimum sentence and the 

advisory sentencing range under the Sentencing Guidelines, 

the judge heard arguments from both parties and imposed a 

sentence of eight years in prison. The judge also adopted the 

PSR’s restitution figures and ordered Harris to pay restitution 

in the total amount of $195,701—$35,000 to the insurer and the 

balance to the store owner.

II. Discussion

Harris’s appeal challenges only the restitution order. Under the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A, 

an order of restitution was mandatory in his case, as he

acknowledged in his plea agreement. He contends that the 

district judge, the probation office, and the government failed 
No. 23-1294 5 

to comply with 18 U.S.C. § 3664 and Rule 32(c)(1)(B) of the 

Federal Rules of Criminal Procedure, which prescribe the procedures for issuing restitution orders. The statute and the rule 

require the probation officer to investigate and provide “sufficient” information to permit the court to enter an order of 

restitution.1

The government maintains that Harris waived his right to 

challenge the restitution order by expressly affirming the accuracy of the factual material in the PSR at the sentencing 

hearing. We agree. “Arguments not properly preserved during sentencing are either forfeited or waived.” United States v. 

Hernandez, 44 F.4th 1053, 1057 (7th Cir. 2022). “The former 

1 As relevant, 18 U.S.C. § 3664(a) states:

(a) For orders of restitution under this title, the court shall 

order the probation officer to obtain and include in its 

presentence report, or in a separate report, as the court 

may direct, information sufficient for the court to exercise 

its discretion in fashioning a restitution order. The report 

shall include, to the extent practicable, a complete accounting of the losses to each victim, any restitution owed 

pursuant to a plea agreement, and information relating to 

the economic circumstances of each defendant. If the 

number or identity of victims cannot be reasonably ascertained, or other circumstances exist that make this requirement clearly impracticable, the probation officer 

shall so inform the court.

In the event of a dispute about restitution, the government bears the burden of proving the amount of the victim’s loss. Id. § 3664(e). 

Rule 32(c)(1)(B) of the Federal Rules of Criminal Procedure reads: 

“Restitution. If the law permits restitution, the probation officer must conduct an investigation and submit a report that contains sufficient information for the court to order restitution.”
6 No. 23-1294 

permits limited appellate review; the latter precludes it.” Id.

at 1057–58. Though we have not always been clear about the 

difference between forfeiture and waiver, our more recent 

cases have clarified the distinction. See, e.g., United States v. 

Flores, 929 F.3d 443, 447–49 (7th Cir. 2019). 

“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.” Id. at 447.

Waiver extinguishes appellate review; forfeited arguments

are reviewed under the plain-error standard set forth in Rule 

52(b) of the Federal Rules of Criminal Procedure. United States 

v. Olano, 507 U.S. 725, 733 (1993). 

The Olano plain-error framework proceeds in four steps 

and begins with the threshold question of waiver: “First, there 

must be an error or defect—some sort of ‘[d]eviation from a 

legal rule’—that has not been intentionally relinquished or 

abandoned, i.e., affirmatively waived, by the appellant.” Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting Olano, 507 

U.S. at 732–33). “Second, the legal error must be clear or obvious, rather than subject to reasonable dispute.” Id. (citing 

Olano, 507 U.S. at 734). “Third, the error must have affected 

the appellant’s substantial rights, which in the ordinary case 

means he must demonstrate that it ‘affected the outcome of 

the district court proceedings.’” Id. (quoting Olano, 507 U.S. at 

734). The fourth and final step requires the court to make a 

discretionary judgment about whether the error warrants a

remedy; reversal is justified “only if the error ‘seriously affect[s] the fairness, integrity[,] or public reputation of judicial 

proceedings.’” Id. (quoting Olano, 507 U.S. at 736). Satisfying 

all four steps “is difficult, as it should be.” Id. (quotation 

marks omitted). 
No. 23-1294 7 

The conditions for finding waiver “depend on the right at 

stake.” Olano, 507 U.S. at 733. The bar is quite high in the context of a guilty plea, but less is needed to waive challenges to 

jury instructions, sentencing issues, or conditions of supervised release. Flores, 929 F.3d at 448. Particularly relevant to 

this case, we have held that “[a] criminal defendant waives 

the right to contest the judge’s factual findings at sentencing 

when he expressly states on the record that he has no objection to the findings.” United States v. Coffin, 23 F.4th 778, 780–

81 (7th Cir. 2022) (quotation marks omitted). Evidence of acquiescence is also relevant, especially “acquiescence ... in the 

face of notice.” Hernandez, 44 F.4th at 1058. 

Here the judge began the sentencing hearing by confirming that Harris had received and reviewed both the PSR and 

the government’s written version of the offense, which included a copy of the itemized insurance claim detailing the 

losses from the fire damage. The judge also confirmed that 

Harris had no objections or arguments in opposition to the 

factual matters in the PSR. Finally, the judge asked Harris if 

he was satisfied with the accuracy of the factual information 

in the PSR. He responded in the affirmative. The record is 

clear that Harris had ample notice of the restitution amount, 

the factual basis for it, and an opportunity to object. He did 

not object; on the contrary, he affirmed that he was satisfied 

with the accuracy of the factual material in the PSR. That’s a 

waiver. 

Harris resists this conclusion, noting that the judge did not 

question him specifically about restitution and that there was

no strategic reason for him to forgo an objection to the amount

of restitution he owed. He also argues that a more rigorous 

standard should apply to waiver in the context of restitution 
8 No. 23-1294 

because, unlike conditions of supervised release, the amount 

of restitution is not modifiable. Compare 18 U.S.C. § 3664(o) 

(permitting changes to restitution primarily concerning a payment schedule), with 18 U.S.C. § 3583(e) (permitting termination, extension, or revocation of supervised release). 

We’re not persuaded. We have previously recognized that 

resolving waiver questions in the restitution context—like 

waiver of arguments about supervised-release conditions—

does not require a rigid analysis. Compare Flores, 929 F.3d at 

448–50 (holistic evaluation of waiver in the context of an unpreserved challenge to supervised-release conditions), with

Hernandez, 44 F.4th at 1057–60 (same as to restitution). And 

although the existence (or absence) of a strategic reason to 

forgo an objection can be informative, see United States v. 

Dridi, 952 F.3d 893, 898 (7th Cir. 2020), we have held that “evidence of a strategic reason not to object ... is a sufficient, but 

not a necessary, ground on which to find waiver,” Flores, 

929 F.3d at 448. We have also explained that identifying a strategic reason for omitting an objection may be more relevant

where the record is ambiguous as to waiver. See Hernandez, 44 

F.4th at 1060. 

Harris’s conduct at the sentencing hearing was anything 

but ambiguous. He had a month’s time to review the PSR and 

the incorporated insurance accounting, which detailed the 

restitution amount recommended by the government and the 

probation officer. He was given an opportunity to raise any 

concerns regarding the factual accuracy of the PSR. Harris 

therefore had “ample advance notice” of the proposed restitution amount, was “expressly invited” to object, and “expressly declined” to do so, confirming that he had no 

objection and expressly affirming the accuracy of the facts in 
No. 23-1294 9 

the PSR. United States v. Lewis, 823 F.3d 1075, 1079 (7th Cir. 

2016). 

Even if we were to conclude that Harris forfeited rather 

than waived his challenge to the restitution order, we would 

not reverse on plain-error review. An error is “plain” under 

the Olano standard only if it is “clear or obvious, rather than 

subject to reasonable dispute.” Puckett, 556 U.S. at 135. Here 

the judge relied on information presented by the probation 

officer, as required by statute, and accepted the itemized 

claim accounting from the insurance company as a reasonable 

measure of the losses from the fire. On appeal Harris raises

nuanced arguments about the appropriate measure of loss for

consumer goods like cellphones and other telecommunications equipment, including arguments about depreciation 

and the difference between retail and wholesale price and replacement and market value. That hardly describes a “clear 

or obvious” error. Reasonable minds can differ on how a court 

should measure pecuniary loss in this context; accepting an 

insurance-claim accounting is certainly one reasonable option. To reverse on plain-error review would require us to say 

that the judge should have raised and resolved these complex 

and fact-intensive questions unprompted. It’s not possible to 

say that here.

AFFIRMED