In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-4098

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAMIEN BRODIE,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 06 CR 47—Larry J. McKinney, Chief Judge.

____________

ARGUED SEPTEMBER 10, 2007—DECIDED OCTOBER 19, 2007

____________

Before EASTERBROOK, Chief Judge, and KANNE and

EVANS, Circuit Judges.

KANNE, Circuit Judge. Damien Brodie was convicted

after a jury trial of possession of cocaine and marijuana

with the intent to distribute. See 21 U.S.C. § 841(a)(1).

On appeal he argues that evidence recovered from his

jacket should not have been admitted at trial. He also

challenges the district court’s calculation of his 240-

month sentence under the sentencing guidelines. For the

reasons set forth in this opinion, we affirm both his

conviction and sentence.
2 No. 06-4098

I. HISTORY

On February 22, 2006, law enforcement officers executed

a “no-knock” search warrant at a double-family residence

located at 521 North Temple Avenue in Indianapolis. The

warrant gave the officers authority to search the house

and to search for an individual known only as “Computer.”

Upon arriving at the address, the officers saw someone

peer out the window. The officers then breached the

front door.

After entering the residence, two officers observed

Brodie, who was inside, remove his jacket, toss it into a

corner, and run into the kitchen. The officers immediately

ordered Brodie to the floor and secured the premises.

Inside the jacket, the officers discovered a brown paper

bag filled with marijuana and crack cocaine. The officers

then searched Brodie himself and recovered 89 empty

plastic baggies. Brodie was arrested and taken to the

Marion County Jail where he was released the same day

after posting a surety bond. Thereafter, in March 2006, a

grand jury indicted Brodie on two counts of violating

§ 841(a)(1) based entirely on the evidence recovered

from 521 North Temple Avenue.

The next month, on April 10, 2006, law enforcement

officers executed an arrest warrant issued for Brodie upon

the indictment, this time at his home at 1822 North

Irvington Avenue. While arresting Brodie, the officers

seized two digital scales containing marijuana and cocaine

residue, as well as nine grams of marijuana. After this

arrest, Brodie was detained pending trial.

Shortly before trial, Brodie moved to suppress the

evidence recovered from the search of his home on April

10—evidence that the government sought to introduce at

trial under Federal Rule of Evidence 404(b). After a

suppression hearing, the district court denied the motion,

concluding that Brodie had consented to the officers’
No. 06-4098 3

search of his home. At no time did Brodie challenge the

admissibility of the evidence underlying the indictment—the evidence recovered during the February 22

search of 521 North Temple—either in his motion to

suppress or during the suppression hearing.

After a two-day trial, a jury found Brodie guilty on two

counts of violating § 841(a)(1). The probation officer

prepared a presentence investigation report (PSR), in

which he computed Brodie’s base offense level at 32 based

upon the amount of drugs involved in the offense. See

U.S.S.G. § 2D1.1(c)(4). To this initial calculation the officer

added two levels because the offense involved a firearm,

see id. § 2D1.1(b)(1), and two levels because Brodie committed perjury at trial, see id. § 3C1.1. The total offense

level of 36, combined with Brodie’s Criminal History

Category of III, yielded a guidelines range of 240 to 293

months’ imprisonment.

Brodie’s counsel filed two written objections to the PSR,

one challenging each offense-level increase. At his sentencing hearing, Brodie acknowledged that he had reviewed the PSR with his attorney. The court then heard

oral argument on each of Brodie’s two objections: the

district court sustained the objection to the offense-level

increase because the crime involved a firearm and denied

Brodie’s objection to the offense-level increase for perjury.

The court then asked Brodie whether he disputed his

Criminal History Category as calculated under the guidelines. Brodie replied, “No.” The court further inquired, “Is

there anything else contained within the presentence

investigative report that you would like to bring to my

attention, Mr. Brodie?” This time Brodie answered, “Not

Really.” After giving consideration to the parties’ arguments regarding the length of sentence to impose, see

18 U.S.C. § 3553(a), the district court sentenced Brodie

at the bottom of the guidelines range to 240 months’

imprisonment.
4 No. 06-4098

II. ANALYSIS

Brodie appeals both his conviction and sentence, assigning error to (1) the district court’s admission of evidence

obtained during the February 22 search, (2) the district

court’s consideration of Brodie’s prior criminal convictions that were not proven beyond a reasonable doubt to

a jury during sentencing, and (3) the district court’s use of

the sentencing guidelines’ suggested crack-to-cocainepowder ratio found in U.S.S.G. § 2D1.1(c). However, Brodie

never raised any of these arguments before the district

court even though he had the opportunity to do so.

Our precedent regarding the waiver or forfeiture of

rights by a criminal defendant is well-established. “Waiver

occurs when a criminal defendant intentionally relinquishes a known right.” United States v. Haddad, 462 F.3d

783, 793 (7th Cir. 2006); United States v. Murry, 395 F.3d

712, 717 (7th Cir. 2005); United States v. Staples, 202 F.3d

992, 995 (7th Cir. 2000). Forfeiture occurs when a defendant negligently fails to assert a right in a timely fashion.

Haddad, 462 F.3d at 793; Staples, 202 F.3d at 995. Waiver

of a right extinguishes any error and precludes appellate

review, whereas forfeiture of a right is reviewed for

plain error. See Haddad, 462 F.3d at 793; Staples, 202

F.3d at 995. With this framework in mind, we will first

review the failure-to-suppress error Brodie assigns to his

conviction, and then turn to the alleged errors in the

district court’s sentencing.

Fed. R. Crim. P. 12(b) provides an example of how “use

of the word ‘waiver’ when one actually means ‘forfeiture’

has led to some difficulty distinguishing the two terms.”

United States v. Murdock, 491 F.3d 694, 698 (7th Cir.

2007). According to Rule 12(b), a criminal defendant

must move to suppress evidence prior to trial. See Fed. R.

Crim. P. 12(b)(3)(C). Moreover, Rule 12(e) states that a

defendant who does not assert a timely motion to suppress
No. 06-4098 5

“waives” the defense. See Fed. R. Crim. P. 12(e). The text

of Rule 12(e) allows the court to grant relief from such a

waiver for good cause. Id.

In United States v. Johnson, we held that “in context the

word ‘waiver’ in Rule 12(e) does not carry the strict

implication of an ‘intentional relinquishment of a known

right’ that precludes all appellate review.” 415 F.3d 728,

730 (7th Cir. 2005). We reasoned that a defendant’s

failure to move to suppress evidence in a timely fashion

is more analogous to the passivity or neglect characteristic

of forfeiture. See id. We also noted that the court’s ability

to grant relief from a Rule 12(e) waiver for good cause

militated in favor of classifying the failure to assert a

motion to suppress as forfeiture rather than waiver. Id.

Therefore, because there is no evidence in the record of

Brodie’s intention to relinquish his suppression motion

other than his failure to comply with Rule 12(b)’s mandate that such a motion must be made before trial,

Brodie has forfeited this argument.

Although a forfeited argument usually warrants plain

error review, before engaging in such review for a Rule 12

forfeiture we must address “the antecedent question

implicit in the language of Rule 12(e)”: whether or not the

defendant has established good cause for his neglect. See

id. at 730-31. This court has repeatedly held that there is

no good cause to excuse a Rule 12 forfeiture where a

defendant files a timely motion to suppress on one ground,

and later seeks to assert a new ground for suppression for

the first time on appeal. See Murdock, 491 F.3d at 698;

Johnson, 415 F.3d at 730. This is precisely what Brodie

has done in this case. Before trial, Brodie filed a timely

motion to suppress in which he challenged evidence

recovered during the April 10 search. Brodie failed to

lodge any objection to the February 22 search in that

motion or at the suppression hearing before the dis-
6 No. 06-4098

trict court. It is only now, on appeal, that Brodie challenges the evidence recovered by authorities during the

February 22 search. These actions do not demonstrate

good cause. Because Brodie cannot meet the more exacting

standard of good cause employed by Rule 12(e) our analysis ends here. It is unnecessary to decide whether a

defendant can obtain a de novo appellate decision on the

question of good cause by the expedient of failing to raise

the issue in the district court. Moreover, we need not

review the district court’s admission of evidence collected from the February 22 search for plain error. See

Johnson, 415 F.3d at 731; United States v. Evans, 131 F.3d

1192, 1193-94 (7th Cir. 1997).

Brodie’s sentencing challenges are similarly meritless. A

defendant who does not object to his sentence when asked

whether he has any objections may communicate an

intention to relinquish any arguments related to his

offense calculation, see United States v. Jaimes-Jaimes,

406 F.3d 845, 848 (7th Cir. 2005); United States v.

Martinez-Jimenez, 294 F.3d 921, 923 (7th Cir. 2002);

Staples, 202 F.3d at 995, and it is clear from the

record that Brodie had access to the PSR and knew of his

right to object to the probation officer’s recommendations.

Brodie objected to certain parts of the PSR and stated on

the record that he did not have any further objections

when asked by the district court. This seems to us the

paragon of intentional relinquishment. See Murry, 395

F.3d at 717 (“In this case, Murry waived his objection

to the jury instruction at issue. The trial court asked

Murry’s counsel twice whether he had any objections to the

instructions and twice he replied definitively that he did

not.”); Richardson, 238 F.3d at 841 (“At sentencing the

judge asked Richardson’s lawyer whether he had an

objection to the enhancement, and the lawyer said ‘no.’

This was a waiver in the strict sense of the term, that is,

a deliberate relinquishment of a known right.”).
No. 06-4098 7

In United States v. Jaimes-Jaimes, we held 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.” 406 F.3d at 848.

However, while we declined to read prior precedent as

creating an inflexible rule of waiver, we also reaffirmed

our holding in United States v. Cooper that when the

defendant selects among arguments as a matter of strategy, he also waives those arguments he decided not to

present. See id.; United States v. Kindle, 453 F.3d 438, 442

(7th Cir. 2006); United States v. Cooper, 243 F.3d 411, 416

(7th Cir. 2001). Thus, we deemed a sentencing challenge was not waived where the government could proffer

no strategic reason for the defendant to forego the argument, and where counsel would have been deficient for

failing to raise it. See Jaimes-Jaimes, 406 F.3d at 848; see

also United States v. Richardson, 238 F.3d 837, 841 (7th

Cir. 2001) (suggesting that forfeiture applies where an

unambiguous record compels the conclusion that counsel

would have been deficient in not advising defendant to

object).

That certainly is not at issue in this case where the

defendant as well as counsel stated on the record that he

had no further objections to the PSR and where counsel

had sound reasons not to raise near-frivolous arguments

to the sentencing judge. Cf. United States v. Rezin, 322

F.3d 443, 446 (7th Cir. 2003) (stating that counsel has

tactical reasons to not raise weak arguments as they may

distract the court from the stronger claims). Even assuming that Brodie merely forfeited his objections to the

district court’s sentencing, neither one constitutes plain

error, as defense counsel wisely has conceded. Both the

Supreme Court and this circuit have held that the district court may constitutionally increase a sentence after

considering prior convictions not proven to a jury beyond

a reasonable doubt. See Almendarez-Torres v. United
8 No. 06-4098

1 We also note that it appears that Brodie may have been eligible

for a consecutive ten-year prison term for his criminal activity

while on pre-trial release based upon the evidence recovered

from his home on April 10—evidence recovered after he was

released on bond for the February 22 incident. See 18 U.S.C.

§ 3147; 21 U.S.C. § 841(a)(1). For reasons that are not clear

from the record, it appears that this conduct was never charged.

States, 523 U.S. 224, 246-47 (1998); United States v.

Sachsenmaier, 491 F.3d 680, 684-85 (7th Cir. 2007).

Moreover, it is impossible for us to see how the trial court’s

use of the guidelines ratio could conceivably be plain

error when we have held that it would be reversible

error for the court to have ignored it and substituted a

different ratio. See United States v. Jointer, 457 F.3d 682,

687 (7th Cir. 2006); United States v. Miller, 450 F.3d 270,

275 (7th Cir. 2006). But see United States v. Kimbrough,

174 F. App’x 798 (4th Cir. 2006), cert. granted, 127 S. Ct.

2933 (U.S. June 11, 2007) (No. 06-6330).

Brodie thus has waived his objections to the district

court’s use of his prior convictions and its use of the

guidelines’ ratio for offenses involving crack. See U.S.S.G.

§ 2D1.1(c).1

III. CONCLUSION

The judgment and sentence of the district court are

AFFIRMED.
No. 06-4098 9

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—10-19-07