### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ Nos. 18-1870 & 18-3096
U NITED S TATES OF A MERICA, Plaintiff-Appellee ,

v.

M ITREL Y. A NDERSON and R AYSHAUN R OACH , Defendants-Appellants

.

____________________ Appeals from the United States District Court for the Western District of Wisconsin. No. 3:17-cr-92 — James D. Peterson , Chief Judge

.

No. 3:17-cr-103 — William M. Conley, Judge

.

____________________
A RGUED D ECEMBER 18, 2019

— D ECIDED J ANUARY 30, 2020

____________________

Before H AMILTON , B RENNAN , and S CUDDER , Circuit Judges

. S CUDDER , Circuit Judge . We have before us criminal defendants contending for the fi rst time on appeal that a condition of their terms of supervised release is unconstitutionally vague. We have seen scores of similar appeals in the last six years. And in a series of recent opinions, we have held—in nouncertain terms—that a defendant who receives an opportunity to object to a proposed condition of supervised release2 Nos. 18-1870 & 18-3096

at sentencing but fails to do so waives his objection. That binding precedent is the law of the Circuit. It resolves these appeals, so we a ffi rm. Mitrel Anderson and Rayshaun Roach each pleaded guiltyto federal drug crimes and were sentenced to terms of imprisonment and supervised release. Before their sentencings, both defendants received Presentence Investigation Reports (orPSRs) that proposed, among others, a supervised release condition providing that they “notpatronize any taverns, bars, liquor stores, nightclubs or other establishments where the primary item of sale is alco hol.” While Anderson and Roach both objected in writing to ce rtain supervised release conditions, with Anderson also cont ending that an alcohol condition was unnecessary, neither de fendant raised a concern that the alcohol condition was unconstitutionally vague. At their sentencings, both defendants con fi rmed that they had read their PSRs, reviewed the reports with their counsel,and waived an oral reading of the proposed supervised release conditions. But at no point during sentencing did either defendant say anything about the alcohol condition being vague. So this makes us the fi rst court to hear Anderson and Roach’s argument that the alcohol condition is vague and overbroad. And this is so despite both defendants having had ample opportunity to present this argument to the district court. But neither did. Our law is unambiguous that under these circumstances, the argument is waived.
In United States v. Flores , 929 F.3d 443, 450 (7th Cir. 2019), we held that a defendant waives an objection to a condition of supervised release “when the defendant has notice of theNos. 18-1870 & 18-3096 3

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 strateg ic decision not to object.” Before the court decided Flores , the panel invoked Circuit Rule 40(e) and circulated the opinion to all judges in active service, and no judge voted to hear the case en banc . See id . at 450 n.1. The defendants seek to sidestep Flores by arguing that it is inconsistent with our prior precedent. In a series of decisionsbeginning in 2014, we often excused or overlooked defendants’ failures to raise vaguene ss and other supervised release challenges in the district court, particularly if the defendants had not had clear advance notice of the proposed conditions and the reasons for them. See, e.g. , United States v. Thompson , 777 F.3d 368, 377–78 (7th Cir. 2015); United States v. Siegel , 753 F.3d 705, 714 (7th Cir. 2014). Befo re those decisions, however, we had most often applied ordinary standards of appellatereview, waiver, and forfeiture to issues concerning supervised release. See, e.g. , United States v. Silvious , 512 F.3d 364, 370–71 (7th Cir. 2008); United States v. Blinn , 490 F.3d 586, 588– 89 (7th Cir. 2007); United States v. Tejeda , 476 F.3d 471, 475–76 (7th Cir. 2007). To reconcile the tension in our approaches, we began to re fi ne waiver rules, and that e ff ort culminated in Flores . The Rule 40(e) circulation in Flores reinforces that our decision re fl ects the law of the Circuit. See United States v. Ray, 831 F.3d 431, 435–36 (7th Cir. 2016) (stating that precedents inconsistent with the outcome of a Rule 40(e) decision, used to address inconsistencies in circuit law, “have no continuing force”).4 Nos. 18-1870 & 18-3096

Flores , in short, clari fi ed and made plain that a defendant who waives a challenge to a supervised release condition will be stuck with the waiver. We have reinforced and adhered to this holding many times in Flores ’s wake. See, e.g. , United States v. Dodds , No. 19-1135, 2020 WL 13274 9, at *3 (7th Cir.Jan. 13, 2020) (applying waiver where the defendant selectively objected to supervised release conditions); United States v. Fisher, 943 F.3d 809, 815 (7th Cir. 2019) (following the same path where defendant objected to none of the conditions challenged on appeal); see also United States v. Tjader , 927 F.3d 483, 485–86 (7th Cir. 2019) (pre-dating Flores but applying waiver where defendant challenged conditions on new grounds); United States v. St. Clair , 926 F.3d 386, 388–89 (7th Cir. 2019) ( fi nding a clear waiver where defendant objected to none of the conditions). Put most simply, Flores was not a mistaken fl uke—it is controlling law.
Anderson and Roach waived th eir argument that the alcohol condition was unconstitutionally vague in nearly every way that Flores identi fi es:

 Both defendants received advance notice of the proposed condition in their PSRs, butthen both failed to raise the vagueness argument in their wri tt en objections, despite presenting other challenges; and

 Both defendants likewise con fi rmed at sentencing that they had read their PSRs and waived a formal reading of the supervised release conditions and from there raised no argument concerning vagueness when asked if they had any objections.Nos. 18-1870 & 18-3096 5

Having allowed the opportunit ies to make their argument pass them by, the defendants waived it. Nor is this the “rare and limited instance” when we may choose to overlook a waiver because the challenged condition concerns activity protected by the First Amendment. See Flores , 929 F.3d at 450 (citing United States v. Adkins , 743 F.3d 176, 192–94 (7th Cir. 2014)). In reinforcing that Flores re fl ects the law of the Circuit, inno way are we questioning whether unconstitutional vagueness is a proper ground on which to challenge a supervised release condition. It surely is. Today’s decision reinforces the more limited but important point that such challenges must fi rst be raised in the district court. Because that did not happen here, we AFFIRM.