### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 2811

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

D ELRICO J. N ELSON

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 1:04

‐ cr

‐ 10073

‐ 001

— Sara Darrow

, Chief Judge

.

____________________

A RGUED J ULY 10, 2019

— D ECIDED J ULY 24, 2019

____________________

Before E ASTERBROOK

, B ARRETT

, and B RENNAN

, Circuit

Judges

.

P ER C URIAM

. Delrico Nelson appeals the revocation of his

supervised release and ensuing 60

‐ month prison sentence. At

his revocation proceeding, he waived his right to a contested

hearing and stipulated that the government would be able to

provide evidence to show that he violated his terms of release.

Nelson now argues that his waiver was not knowing and2 No. 18

‐ 2811

voluntary. Because the totality of the circumstances demon

‐

strates otherwise, we affirm the district court’s judgment.

I. B ACKGROUND

In 2006, Nelson pleaded guilty to one count of possessing

more than 50 grams of cocaine with the intent to distribute,

see 21 U.S.C. § 841(a)(1), (b)(1)(A), and was sentenced to 16

years’ imprisonment and 10 years’ supervised release. After

being released from prison in 2014, Nelson—then serving su

‐ pervised release—was arrested and charged with possession

of a controlled substance with intent to deliver. Based on Nel

‐

son’s stipulation to violating his conditions of release, the dis

‐

trict court (Judge Mihm) revoked Nelson’s supervised release

and sentenced him to 30 months’ imprisonment and 18

months’ additional supervised release.

Nelson began his second term of supervised release in

2017. In November that year, Nelson’s parole officer peti

‐

tioned to revoke his supervised release based on allegations

that he had committed two counts of aggravated battery, one

count of possession of cannabis with intent to deliver, and one

count of possession of cannabis.

Nelson was brought to the district court (before Magis

‐

trate Judge Shields) for an initial hearing on the petition to

revoke. The judge asked defense counsel whether he had the

chance to discuss the revocation petition with Nelson, and

counsel confirmed that he had. The judge then asked Nelson

if he understood “what the government [sought] to have oc

‐

cur if this petition would be granted,” to which Nelson said

yes. The judge scheduled the final revocation hearing for two

months later.No. 18

‐ 2811 3

At the final hearing, the parties informed the court (this

time, Judge Darrow) that the government had agreed to rec

‐

ommend a lower sentence (41 months’ imprisonment—

10 months below the recommended guideline range † ) in ex

‐ change for Nelson’s stipulation that he violated his terms of

release and waiver of his right to a contested revocation hear

‐ ing. Judge Darrow informed Nelson that, if he wished to pro

‐

ceed and so stipulate, his stipulation could not be conditioned

on the court’s acceptance of the proposed sentence. Nelson

responded “I ain’t got no say no way. Just go on and agree to

it.” The judge expressed concern about the voluntariness of

his stipulation. She directed Nelson to confer with his lawyer,

who, after an exchange with Nelson, assured the court that

Nelson understood “all the principles” and did not “want to

fight it anymore.” The judge asked Nelson if he agreed with

his attorney’s statement, and Nelson answered that he did.

Nelson, under oath, then stipulated that the government

would be able to provide enough evidence for the court to

find by a preponderance of the evidence that he had violated

conditions of his supervised release. The judge then ques

‐

tioned Nelson about the voluntariness of his stipulation and

said that she sensed reluctance. Nelson responded that he was

frustrated with the situation because he had “no say in noth

‐ ing that happened.” Nelson added, however, that he was

“okay with stipulating” and did not need a full hearing be

‐

cause he had violated the conditions of his supervised release

† Based on Nelson’s criminal history category, the guidelines recom

‐

mended 51–63 months’ imprisonment, see USSG § 7B1.4(a), though

18 U.S.C. § 3583(e)(3) capped any sentence at 60 months.4 No. 18

‐ 2811

“just by being arrested.” The judge proceeded to accept the

stipulation.

The government and defense counsel then argued in sup

‐

port of their jointly proposed 41

‐ month prison term. The gov

‐

ernment defended the need for a downward departure be

‐

cause Nelson’s stipulation avoided the expense and time of

conducting a contested evidentiary hearing and, besides,

there were “some Fourth and Fifth Amendment issues with

proving up the violations beyond a reasonable doubt.” The

government added that there was less of a need for specific

deterrence because Nelson would likely be prosecuted and

receive a sentence in state court for the underlying violations.

Defense counsel seconded the need for a lesser penalty, given

that Nelson was being punished not because he had been

found guilty beyond a reasonable doubt of committing state

law violations, but because he had violated his terms of su

‐ pervised release by a preponderance of the evidence.

Nelson was then invited to allocute. He began by stating

that he “was under the impression from reading the statute

... that just being arrested [was] a violation of [his] term.” The

district court interrupted him: “Well, just being arrested isn’t

enough, but [it would be enough] if you’re agreeing that the

government would call the witnesses

... to testify and that

they would testify to the facts that they outlined. So it’s not

just being arrested.” When asked if he understood that, Nel

‐

son answered yes.

The court ultimately rejected the parties’ joint recommen

‐

dation and sentenced Nelson to 60 months’ imprisonment,

the statutory maximum. The court did not agree that a down

‐

ward departure was warranted, explaining that it was unper

‐

suaded that avoiding the expense of a contested hearingNo. 18

‐ 2811 5

justified a reduced sentence. The court then dismissed as

speculative the government’s suggestion that Nelson would

be separately convicted in state court, and so it refused to ad

‐ just the sentence based on that argument. Finally, the court

was concerned with Nelson’s criminal history and the fact

that his prior revocation and subsequent sentence did not de

‐

ter him from engaging in unlawful conduct.

II. A NALYSIS

Nelson’s appeal centers on one overarching argument:

that his waiver of a contested revocation hearing was not

knowing and voluntary. See United States v. Boultinghouse

,

784 F.3d 1163, 1172 (7th Cir. 2015) (explaining that defend

‐

ant’s waiver of any procedural right granted by Rule 32.1

must be knowing and voluntary); United States v. LeBlanc

,

175 F.3d 511, 515 (7th Cir. 1999) (same).

At the outset, the parties disagree on the standard of re

‐

view that governs this issue. Nelson asserts that the question

whether a waiver is knowing and voluntary is subject to de

novo review. The government counters that plain error must

apply when a defendant like Nelson challenges his waiver of

a contested revocation hearing for the first time on appeal.

See F ED

. R. C RIM

. P. 52(b). The government is correct: Nelson’s

failure to preserve his challenge constitutes forfeiture and

limits this court’s review of his claim to plain error. See United

States v. Vonn

, 535 U.S. 55, 71 (2002); United States v. Luepke

,

495 F.3d 443, 446–47 (7th Cir. 2007); United States v. Reyna

,

358 F.3d 344, 350 (5th Cir. 2004) (en banc).

As for the merits, Nelson first argues that his waiver was

not knowing and voluntary because he did not understand

the charges against him. Pointing to his colloquy with Judge6 No. 18

‐ 2811

Darrow, he contends that he misunderstood whether “just be

‐ ing arrested” constituted a violation of his release. But even if

we assumed that Nelson still was confused after the district

judge told him that “being arrested isn’t enough” to constitute

a violation, the totality of the circumstances show that his

waiver was knowing and voluntary. Nelson had the oppor

‐ tunity to review the violation memorandum and discuss it

with his attorney in advance of the hearing. See F ED

. R. C RIM

.

P. 32.1(b)(2)(A); United States v. Jones

, 774 F.3d 399, 403

(7th Cir. 2014) (“[The defendant] received all the process due

him at his revocation proceedings. He was given adequate no

‐

tice, represented at all times, [and] appeared at the hear

‐ ing....”). He did not object to the contents of the revocation

memorandum, and further conceded that the government

could and would present facts demonstrating that he commit

‐

ted the offenses of aggravated battery, possession, and intent

to distribute. And he acknowledged that the offense that led

to his prior revocation of supervised release resembled the of

‐

fenses that he was alleged to have committed this time.

The cases that Nelson relies on in support of his argument

are unavailing. In United States v. Correa

‐ Torres

, 326 F.3d 18

(1st Cir. 2003), the First Circuit concluded that the appellant’s

revocation waiver was not knowing and voluntary because

the charges underlying his alleged violation were never set

forth in the revocation proceedings, and the appellant ap

‐ peared to believe that he did not commit a crime at all, id. at

24. But here, Nelson read the violation memorandum and de

‐

clared that he understood the charges against him: aggra

‐

vated assault, possession of cannabis, and intent to distribute

cannabis. The government also orally described the factual

predicate of the allegations during the hearing. Likewise, Nel

‐

son cites United States v. Pineda

‐ Buenaventura

, 622 F.3d 761No. 18

‐ 2811 7

(7th Cir. 2010), for the proposition that a waiver is unknowing

when a court fails to remedy a mistaken understanding that

an arrest by itself violates the terms of supervised release. But

that case involved allegations of an inchoate crime, and the

defendant there demonstrated a lack of understanding of

what crime he was charged with committing. Here, Nelson

acknowledged what conduct he was alleged to have engaged

in and what the resulting charges were. And unlike the de

‐

fendant in Pineda

‐ Buenaventura

, Nelson admitted that the gov

‐

ernment here had sufficient evidence to prove that he com

‐

mitted the crimes as charged.

Nelson next contends that his waiver was not knowing

and voluntary because he did not understand that he would

be waiving his right to present evidence and cross examine

witnesses. See F ED

. R. C RIM

. P. 32.1(b)(1)(B). But the district

court was not required to address in checklist fashion each

procedural right that Nelson was waiving when stipulating

that he had violated his terms of release. See Boultinghouse

,

784 F.3d at 1172. Instead, “where the record confirms that the

defendant had a sufficient grasp of a particular right or con

‐

sequence of the waiver that the court may have omitted from

its admonishments, we will sustain the waiver as knowing

notwithstanding the gap in the colloquy.” Id. And based on

the record, Nelson had to have understood the rights that he

was waiving and the consequences of doing so. He was rep

‐

resented by counsel, and he said that he understood that he

was waiving his right to a full hearing and his right to chal

‐ lenge the length of his sentence. What is more, earlier at his

first revocation hearing (where he similarly stipulated that he

had violated the terms of his release), Nelson waived his

rights to compel witnesses to appear on his own behalf and to

cross

‐ examine the government’s witnesses. Based on his prior8 No. 18

‐ 2811

experience waiving a contested revocation hearing, see United

States v. Scott

, 900 F.3d 972, 975 (7th Cir. 2018), Nelson had to

have known what rights he was waiving by foregoing a full

evidentiary hearing.

Finally, Nelson contends that his waiver was not knowing

and voluntary because it was premised on erroneous legal ad

‐

vice. He contends that, had he known that his lawyer’s argu

‐

ments for a 41

‐ month sentence would have been summarily

dismissed by the court, he never would have waived his right

to a contested revocation hearing. But he cites no cases to sug

‐

gest that reliance on a lawyer’s unsuccessful arguments ren

‐

ders such a waiver not knowing and voluntary. The cases that

he relies on for this contention deal with the ineffective assis

‐

tance of counsel, see United States v. Jones

, 861 F.3d 687, 690–91

(7th Cir. 2017); United States v. McCoy

, 215 F.3d 102, 107–08

(D.C. Cir. 2000), which is not a claim that he develops here.

We AFFIRM the district court’s judgment.