### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-1170
U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v.

M ONTA G ROCE , Defendant-Appellant

.

____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 15-cr-78-wmc-01 — William M. Conley, Judge

.

____________________
A RGUED J ANUARY 14, 2020

— D ECIDED M ARCH 20, 2020

____________________

Before W OOD , Chief Judge, and R OVNERand S T

. E VE , Circuit Judges

. W OOD , Chief Judge . Monta Groce challenges two conditions of supervised release thatwere imposed as part of his sentence for various sex tra ffi cking crimes. In the district court, Groce did not object to either of the two conditions, even though he objected to four others and waived his right to have the district court read each condition and its justi fi cation. We have faced this situation in several recent decisions2 No. 19-1170

and have found that these circumstances normally amount to waiver. There is nothing unusual in Groce’s case that would call for a di ff erent result. We thus hold that he waived his appellate challenges to the two conditions, and we a ffi rm. IIn 2016, a jury convicted Groce of eight charges in a ninecount indictment: three counts of sex tra ffi cking in violation of 18 U.S.C. §§ 1591(a)(1) and (b)(1); conspiracy to engage in interstate transportation for pr ostitution in violation of 18U.S.C. § 371; interstate transportation for prostitution in violation of 18 U.S.C. §§ 2421 an d 2422; maintaining a drug house in violation of 21 U.S.C. § 856(a)(1); using or carrying a fi rearm in maintaining the drug house in violation of 18 U.S.C. § 924(c); and witness retaliation in violation of 18 U.S.C. § 1513(b)(2). The district court sentenced Groce to 25 years in prison, to be followed by 20 years of supervised release. Groce appealed and challenged his convictions for witness retaliation and sex tra ffi cking. The government conceded thatthe jury instruction regarding the retaliation count was erroneous and that vacating this count of conviction was appropriate. We agreed with that a ssessment and so we vacated the retaliation count, a ffi rmed the district court’s judgment in all other respects, and remanded for resentencing. United States v. Groce, 891 F.3d 260, 271 (7th Cir. 2018). Before resentencing, the probation o ffi cer issued a revisedpresentence investigation report (PSR). The revised PSR recommended eleven standard conditions of supervised release and seven special conditions. Among those conditions are the two Groce now challenges in this, his second appeal:No. 19-1170 3

Conditions 11 and 18. Condition 11, which was slightly altered from the original PSR, states: As directed by the probation o ffi cer, defendant shallnotify employers and third parties providing volunteer opportunities and educational opportunities; organizations to which defendant belongs; and neighbors and family members with minor children, of defendant’s criminal record based on risk associated with his o ff ense, his obligations to register as a sexual offender, and the legal requirements under the Sex Offender Noti fi cation Act. The probation o ffi cer may also take steps to con fi rm defendant’s compliance with this noti fi cation requirement or provide such noti fi cations directly.
Condition 18 states: Have no contact with the victim in person, through wri tt en or electronic communication, or through a third party, unless authorized by the supervising U.S. probation o ffi cer. Defendant shall not enter the premises or loiter within 1,000 feet of the victim’s residence or place of employment. At his resentencing, Groce con fi rmed that he had read his PSR and reviewed it with his co unsel. He objected to conditions 4, 8, 15, and 17. The district court addressed those objections and modi fi ed one condition. Groce waived reading of the remaining conditions and their justi fi cations. His counselstated, “I’m aware of no grounds for objecting to the remaining conditions, and we’re willing to waive the reading.” The district court resentenced Groc e to 25 years of imprisonment and 20 years of supervised release.4 No. 19-1170

II Groce has now presented challe nges to Conditions 11 and 18, both of which he contends are vague and overbroad. Grocecomplains that Condition 11 is particularly unclear. He professes to be unsure whether he must disclose only his criminal record to third parties or whether he must also disclose the risks associated with his o ff ense, his obligations to register as a sexual o ff ender, and the legal requirements under the Sex O ff ender Noti fi cation Act. With respect to Condition 18, Groce asserts that he needs the names of the victim or victimswhom he is supposed to avoid, and that the condition is invalid insofar as it does not requir e his contacts to be knowing. Although Groce’s criticisms may be valid (though wemake no ruling on them one way or the other), he cannot proceed unless he can clear the waiver hurdle. We recently clarifi ed our approach to appeals in which the defendant challenges a supervised release condition for the fi rst time on appeal. In United States v. Flores , 929 F.3d 443 (7th Cir. 2019), we held:
We will fi nd waiver, as we do here, when the defendant has notice of the proposed conditions, a meaningful 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 conditions but not the one(s) challenged on appeal, or otherwiseevidences an intentional or strategic decision not to object.
Id. at 450. In reaching that decisi on, we took into account the fact that 18 U.S.C. § 3583(e)(2) permits defendants toNo. 19-1170 5

challenge a condition of supe rvised release, unlike other terms of a sentence, at any time. Id. at 451.Here, all the evidence points toward a waiver. At resentencing, Groce con fi rmed that he had the opportunity to read and discuss the revised PSR. Inaddition, Groce objected to four conditions at the resentencing but not the two conditions he now challenges. Groce also chose to waive reading of the two conditions and their justi fi cations. By choosing to pursue certain arguments and forgoing others, Groce waived other possible challenges. “Nor is this the ‘rare and limited instance’ when we may choose to overlooka waiver because the challenged condition concerns activity protected by the First Amendment.” United States v. Anderson , 948 F.3d 910, 912 (7th Cir. 2020) (citing Flores , 929 F.3d at 450). Realizing that Flores controls this case, Groce asks us to overturn that recent decision, ar guing that it is inconsistent with the Supreme Court’s de fi nitions of waiver and forfeiture. He cites United States v. Olano , 507 U.S. 725 (1993) which states: “Waiver is di ff erent from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the ‘intentional relinquishment or abandonment of a known right.’” Id. at 733 (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). Groce emphasizes that wa iver must be intentional on the part of the defendant and should be knowing and voluntary. Such intent should not be inferred, he contends, when a defendant merely fails to objectto a condition of supervised release. Groce concludes that Flores incorrectly expanded the de fi nition of waiver.
Flores , however, is consistent with the Supreme Court’s explanations of both waiver and fo rfeiture. In the end, the question whether a defendant waived or forfeited a point depends6 No. 19-1170

on a factual analysis of the proceedings. The circumstances in which Flores said that we would normally fi nd waiver are reliable indicia that a defendant is intentionally relinquishing a known right. Contrary to Groce’s accusation, we are not simply relying on a defendant’s silence. Flores alerts defendants that the proper place to rai se challenges to supervised release conditions is in the district court. If the defendant fails to raise such a challenge, as mentioned above, the defendant may still petition the district court for a modi fi cation of the condition under 18 U.S.C. § 3583(e)(2). The record here leaves no doubt that Groce intentionally refrained from challenging Condition 11 and Condition 18, and so his appeal must fail at the threshold.
We A FFIRM the district court’s judgment.