### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-2254
U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v.

T RAVIS J. B ARRETT , Defendant-Appellant

.

____________________ Appeal from the United States District Court for the

Northern District of In diana, Hammond Division. No. 2:17-cr-00001 — Joseph S. Van Bokkelen , Judge

.

____________________
A RGUED O CTOBER 6, 2020

— D ECIDED N OVEMBER 30, 2020

____________________

Before W OOD , B RENNAN , and S CUDDER , Circuit Judges

. S CUDDER , Circuit Judge . In United States v. Flores , we addressed ambiguity in our case law by announcing a clear and precise rule for resolving the all-too-common circumstance of a criminal defendant contending for the fi rst time on appeal that a condition of supervised release is unconstitutionally vague, despite having received notice of all proposed conditions before sentencing and then availing himself of the opportunity to object to other cond itions. We held such a course2 No. 19-2254

of action constitutes waiver, rendering the challenge unreviewable on appeal. This principle requires us to a ffi rm Travis Barre tt ’s sentence here.
I
In 2016 federal authorities found Barre tt with nearly 15,000 images and 2,450 videos of child pornography. Asearch of his computer also turned up a “Pedophile’s Handbook.” Barre tt responded to the ensuing federal charges by pleading guilty to possessing child pornography. He did so pursuant to a plea agreement with a provision waiving any appellate challenge “on any ground” to “all components” of his sentence. Barre ttcon fi rmed that he understood the waiver during his plea colloquy. The district court sentenced Barre tt to 97 months’ imprisonment fo llowed by 10 years of supervised release.
Barre tt now contends that the di strict court violated hisFirst Amendment rights by imposing a condition of supervised release that will prevent him from viewing any material depicting “sexually explicit conduct,” de fi ned in 18 U.S.C. § 2256(2) to include adult pornography. But Barre ttnever raised this challenge at sentencing, despite having a full and fair chance to do so. How this happened is worth explaining, for we have seen this exact course of conduct many times in recent years and have sought to bring its recurrence to an end.
Barre tt con fi rmed at sentencing that he had not only received advance notice of all 34 proposed conditions of supervised release, but also discussed them with his counsel. Hewaived a public reading of each condition. From there the district court invited any objections, and Barre tt responded with several. The objections resulted in a colloquy with the districtNo. 19-2254 3

court and ended with rulings on each challenged condition. The process, in short, worked as designed: Barre ttraised objections and explained his positions, the government responded with its views, and the district court ruled on the challenges one at a time. The dist rict judge even took care to invite further challenges to prevent Barre tt from waiving any lingering objection. At no point during or in advance of sentencing, however, did Barre tt or his counsel u tt er a word about Condition 31. Perhaps foregoing an objectio n was an oversight by Barre tt and his counsel. Mistakes happen. Or perhaps passing on the objection re fl ected sound strategy, for it is easy to see why a defendant standing before a dist rict court for sentencing on a sexual o ff ense against children would fi nd it unwise to express future interest in viewing adult pornography. Whatever the explanation, the record is clear: Barre ttexpressed no reservation with, and asked no questions about, Condition 31. In these circumstances, and separate and apart from the broad appellate waiver he agreed to in his plea agreement, Barre tt runs headlong into the rule we announced in United States v. Flores : a waiver of an objection to a condition of supervised release occurs “when th e defendant has notice of the proposed conditions, a meaning ful opportunity to object, and she asserts (through counsel or directly) that she does not object to the proposed conditions, waives reading of those conditions and their justi fi cations, challenges certain conditionsbut not the one(s) challenged on appeal, or otherwise evidences an intentional or strategic decision not to object.” 929 F.3d 443, 450 (7th Cir. 2019). Every condition identi fi ed in Flores is present here, and that real ity forecloses our review of Barre tt ’s belated challenge to Condition 31.4 No. 19-2254

That Barre ttcontests Condition 31 in the name of the First Amendment is of no moment. Pointing to United States v. Adkins , 743 F.3d 176 (7th Cir. 2014), he argues that we have permi tt ed challenges to conditions that touch on First Amendment rights, even where those challenges would be otherwise waived. Barre tt misunderstands our holding. We do not read Adkins as creating a general, open-ended First Amendment exception to our waiver doctrine, and certainly not after our clarifying decision in Flores . We have since underscored that Flores “was not a mistaken fl uke—it is controlling law.” United States v. Anderson , 948 F.3d 910, 912 (7th Cir. 2020).Whatever remains of any First Amendment exception posited by Adkins is a question we save for another day. What is plain beyond debate here is that Barre ttwaived his challenge to Condition 31 by not presenting it to the district court.Make no mistake about our holding. In no way are we saying that criminal defendants ca nnot challenge conditions of supervised release as unconstitutionally vague. They surely can (and do), and our doors rema in open to considering such challenges if defendants take care to present the issue to the district court in the fi rst instance.
II We close by responding to Barre tt ’s assignment of fault tohis counsel for failing to challenge Condition 31 before or during sentencing. Barre ttnotes that at one point his counsel could not answer a question from the court because he was “still in shock” at the 97-mont h sentence. This claim sounds in ine ff ective assistance of counsel—a claim Barre tt ’s plea agreement authorizes him to pursue under 28 U.S.C. § 2255 should he wish to do so. See United States v. Cates , 950 F.3dNo. 19-2254 5

453, 457 (7th Cir. 2020). We have repeatedly reminded criminal defendants that collateral re view, not direct appeal, is far and away the proper and best channel for raising an ine ff ective assistance of counsel claim. See, e.g. , id. at 456–57 (collecting cases emphasizing the same point). For these reasons, we AFFIRM.