NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0276n.06 No. 12-1396 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,
v. CORY KENT TRAXL ER, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF MI CHI GAN

BEF ORE: DAUGHT REY, McKEAG UE, and G RI FF I N, Circuit J udg es. GRI FF I N, Circuit J udg e. Def endant Cory Traxler appea ls his sentenc e, imposed following a rema nd for rese ntencing , and arg ues that two specia l conditions of supervised rele ase order ed by the district court violate the require ments of 18 U.S.C. § 3583(d). Howeve r, beca use Trax l er failed to raise this issue in conjunction with the g overnme nt’s orig inal appea l, the waiver doctrine prec ludes our consideration of the mer its of his claim. W e ther efor e af firm his sentence

. I

. Def endant Cory Traxler was char g ed with, and pled g uilty to, being a felon in possession of

a firea rm, in violation of 18 U.S.C. §§ 922(g )(1) , 921(a) , and 924(e) (1). The char g e stemmed from photogr aphic and video evidenc e showing that Traxler eng ag ed in firea rms training exercises with members of the white supremac ist movement while on felony parole

. Def endant fac ed a 180-monthNo. 12-1396

USA v. Traxler mandatory minimum sen t en ce under the Armed Caree r C riminal Act, 18 U.S.C. § 924(e) , but the g overn m ent filed a motion to depar t downwar d from the mandatory minimum based on Traxler’s substantial assistance to law enfor ceme nt. Traxler, in turn, moved for a downwar d varia nce, citing his remorse , acc eptanc e of responsibility , and maturation as fac tors under 18 U.S.C. § 3553(a) that

war rante d the var iance

. On May 13, 2010, the district court g rante d the g overnme nt’s motion and sentenc ed Traxler
to six ty months in prison and thirty -six months of supervised rele ase. The court also order ed Traxler
to comply with six specia l conditions of supervised rele ase including, i n t er alia, prohibitions on contac t or aff

iliation with an y ra ce s u prema cy or hate g roups without prior permission from the probation office r (Specia l Conditi on 4), and the possession of any rac e s u p rema cy or hate g roup clothing or para

pherna lia (Specia l Conditi on 5). At the conclusion of the sentenc ing hear i n g, the g overnme nt objected to the r easona bleness of the sentenc e, but Tra x ler ha d “[n] o objections.” The g overnme nt a

ppeale d the six ty -month sentenc e, arguing that the district court err ed by considering fac tors other than Traxler’s substantial assistance when deter mining the extent to which it would depar

t downwar d from the statutory minimum sentenc e. Traxler filed no cross appea l. Citi ng “[t] he confusion that exis ts [on the re cord a s to] how t he dis trict court reac hed it s sentenc e in light of the g overnme nt’s and Traxl er’ s pending motions,” a panel of our court vacated the
sentenc e and rema

nded the case for rese ntencing

. United States v. Traxler , 455 F. App’x 684, 686 (6th Cir. 2012).

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USA v. Traxler

On rema nd , t h e p ar ties rene wed their respe ctive sentenc ing motions. The district court g rante d a six -leve l substantial assistance depar ture and sentenc ed Traxler to nine ty -two months of imprisonment, thirty -six months of supervised rele ase, and the same standard and specia l conditions of super vised rele ase or dere d at the orig inal sentenc ing. N either pa rty objected to the se ntence

. Traxler now appea ls his sentenc e, challeng ing the dis t ri ct court’s imposit ion of Special Conditi ons 4 and 5. Specifica lly , Traxler argues that these specia l conditions contravene 18 U.S.C. § 3583(d) beca

use they are not rea sonably rela ted to § 3553(a) s en t encing fac tors, they involve a g reater depriva

tion of liberty than is rea sonably nece ssary , and Special Conditi on 5 is impermissibly vag ue. Traxler conce des that he did not prese rve an objection to these specia l conditions in the d i s trict court, but he arg

ues that we should revie w the merits of his claim under the plai n -e rr o r standard of revie w applicable to forf eited issues. I n response , the g overnme nt asser ts that the appea l should be dismiss ed p ursuant to the “wa iver doctrine” beca use Traxler could, and should, have 1 raised his c halleng e to the spec ial conditions in the first appea l. We ag ree with the g overnme nt. I n the prese nt context, Traxler’s failure to challeng e the specia l conditions of super v i s ed rele ase in either the district court or during the prior appea l to our court prec ludes our consideration

Although the terms are often confuse d, forf eiture and waiver are distinct conce pts: 1 “W h er ea s forf

eiture is the failure t o make the timely asser tion of a rig ht, waiver is the i ntent i o n al relinquishment or abandonme nt of a known rig ht.” United States v. Olano , 507 U.S. 725, 733 (1993) (citation and internal quotation marks omi tted ). For feiture , unlike waiver , does not exti ng uish an err or under Fe dera l Rule of Criminal Procedur e 52(b). Id

. “Whether a particula r rig ht is waivable ; whether the defe ndant must participa te perso nally in the waiver ; whether cer tain proce dures are require d for waiver ; and whether the defe ndant’s choice must be particula rly informed or voluntary , all depend on the rig ht at stake.” Id

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USA v. Traxler

of his claim. “The law-of -the-c ase doctrine bars challeng es to a decision made at a previous stag e of t he litiga tion which could have been c halleng ed in a pr ior appe al, but wer e not.” United St ates v. Adesida , 1 2 9 F.3d 846, 850 (6th Cir. 1997). Thus, “[a] party who could have sought review of

an issue or a ruling during a prior appea l is deeme d to have waived the rig ht to ch all eng e that decision there afte r, for

‘[i] t would be absurd that a par ty who has c hosen not to argue a point on a first appe al should stand better as reg ards the law of the case than one who ha d argued and lost.’” Id. (quoting Fogel v. Chestnutt , 668 F.2d 100, 109 (2nd Cir. 19 8 1 )) ; s ee also United States v. McKinley , 227 F.3d 716, 718 (6th Cir. 2000) (“The g ener al rule [i s] that when a party fails to se ek revie w of a district court’s final ord er, it is barr ed from rea sserting that issue in any subsequent appea ls occur

ring in that case .”). The waiver doctrine exis t s for g ood rea son—it discourag es “per petual litigation” and promotes finality in cri m i n al proce eding s by requiring that parties seek revie w of a

claim in the first appe al. McKinley , 227 F.3d at 719. We have c onsistently

applied the waiver doctrine to sentenc ing issues that wer e not ra ised in an orig inal appea l. See, e.g., United States v. W ynn , 485 F. App’x 766, 772 (6th Cir. 2012) (“[I ]n choosing to c halleng e in his orig inal appea l only the classification of his conviction for sexual battery and not the cla ssification of his conviction for assault on a peac e office r, Wy nn clea rly waived his rig ht to bring a

subsequent cha lleng e to the latter predic ate c onviction.”); United States v. Se dore , 512 F.3d 819, 827 (6th Cir. 2008) (holding that the defe ndant waived any argument on rema nd that there was only one victim for sentenc ing- enhanc ement purposes wher e he did not raise this issue in his first appea l or at the rese ntencing hear ing) ; United States v. Mitchell , 232 F. App’x 513, 517 (6th

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Cir. 2007) (“B eca

use [t he defe ndant] did not object to th e district court’s application of the enhanc ement under [U.S .S.G.] § 2K2.1(b)( 5) in his prior appea l, [he] is fore closed from raising the objection now.”) ; McKinley , 227 F.3d at 718 (holding that the g overnme nt waived its argument for

a sentenc e enhanc ement wher e the g overnme nt failed to pursue this claim during the ear lier appea l of the c ase)

. Although our

court “ has allowed parties to addre ss issues on remand not a ddresse d during the i nitial sentenc ing appea l if the moving pa rty had bee n either una

ble to asser

t the i ssue i nitially

or the issue only beca

me logic ally rele vant following rema nd,” United States v. Boudreau , 564 F.3d 431, 435 n.1 (6th Cir. 2009), this “nar row except ion” to the waiver doctrine does not apply here , wher e Traxler’s argument challeng ing Special Conditi ons 4 and 5 “wa s just as available to [hi m] during the first appe al as it is in the curre nt proce eding .” McKinley , 227 F.3d at 718. I I

. For these rea sons, we d ecline to addre ss the merits of Traxler’s sentenc ing claim. We there fore aff

irm the judg ment of the district cour t.

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