### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 3249

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

V ALERIE F LORES

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Western District of Wisconsin.

No. 3:18

‐ cr

‐ 00039

‐ wmc

‐ 2

— William M. Conley

, Judge

.

____________________

A RGUED M AY 22, 2019— D ECIDED J ULY 3, 2019

____________________

Before H AMILTON

, S CUDDER

, and S T

. E VE

, Circuit Judges

.

S T

. E VE

, Circuit Judge

. In this appeal, Valerie Flores chal

‐ lenges one condition of her supervised release as unconstitu

‐ tionally vague. She admits that she did not raise the chal

‐ lenge in the district court, but she asks that we review it for

plain error. The fi rst step in plain

‐ error review, as the Su

‐

preme Court has repeatedly said, is to ask whether the de

‐

fendant intentionally relinquished the challenge she now

presents. See Rosales

‐ Mireles v. United States, 138 S. Ct. 1897,2 No. 18

‐ 3249

1904–05 (2018); Molina

‐ Martinez v. United States

, 136 S. Ct.

1338, 1343 (2016); United States v. Olano

, 507 U.S. 725, 733

(1993). This is where Flores’s challenge fails. She had notice

and opportunity to make the challenge in the district court,

she submi tt ed other sentencing challenges, and she a ffi rma

‐ tively waived reading of the conditions and their justi fi ca

‐

tions at sentencing. Her failure amounts to waiver, preclud

‐ ing appellate review.

We recognize, and will address, that in some cases we

have overlooked waiver concerns when reviewing super

‐

vised release conditions for plain error. Those cases either

presented compelling reasons for forgiving waiver, which

this case does not present, or simply did not address waiver,

usually because the government did not press it. We empha

‐

size, as the Supreme Court has, that waiver is a threshold,

context

‐ speci fi c inquiry in plain

‐ error review. Due to Flores’s

waiver, we a ffi rm.

I

In January 2018, Wisconsin law enforcement learned via

con fi dential informants that Flores and her co

‐ defendant had

traveled to California to obtain methamphetamine and

transport it back to Wisconsin to sell. Through her cell

phone, the o ffi cers tracked Flores and her co

‐ defendant, who

were driving separate vehicles in tandem. Police conducted

tra ffi c stops after the co

‐ defendants returned to Wisconsin.

Searches of their vehicles revealed more than 300 pounds of

marijuana with a street value of approximately $1.8 million.

A grand jury returned an indictment charging Flores

with possession with the intent to distribute 100 kilograms

or more of marijuana under 21 U.S.C. § 841(a)(1). BecauseNo. 18

‐ 3249 3

Flores had a prior state court conviction for a felony drug

o ff ense, and was on supervision for that o ff ense at the time

of her arrest, the government fi led an information under 21

U.S.C. § 851 for enhanced penalties. Flores faced a mandato

‐

ry minimum sentence of ten years and a supervised release

term of eight years. See 21 U.S.C. § 841(b)(1)(B)(vii).

In July 2018, Flores pleaded guilty. Using the 2016 United

States Sentencing Guidelines Manual, the United States Pro

‐

bation O ffi ce prepared Flores’s Presentence Investigation

Report, Revised Presentence Investigation Report, and ad

‐

dendum to the report (collectively “PSR”).

A tt ached to the PSR was the supervision plan listing the

standard and special conditions of supervised release. At is

‐

sue on appeal is standard condition #3 (employment condi

‐ tion), which stated: “Defendant shall maintain lawful em

‐ ployment, seek lawful employment, or enroll and participate

in a course of study or vocational training that will equip de

‐

fendant for suitable employment, unless excused by the pro

‐

bation o ffi cer or the Court.” In Flores’s supervision plan, the

probation o ffi ce noted that “defendant’s employment has

been sporadic and inconsistent,” and also “[s]he has out

‐ standing fi nancial obligations.” The probation o ffi ce’s justi fi

‐

cation for the employment condition stated, in part,

“[e]vidence based practice research indicates that lawful,

stable employment and education are pro

‐ social activities

that reinforce the rehabilitation of defendant.”

Flores had the opportunity to object to the PSR and dis

‐

cuss sentencing issues in writing before sentencing. In Sep

‐

tember 2018, she fi led objections, corrections, and clari fi ca

‐

tions to the PSR. She did not, however, object to any of the

proposed conditions of supervised release. A couple weeks4 No. 18

‐ 3249

Fdatory minimum sentence to run concurrently with her

state sentence. Again, Flores did not object to any of the pro

‐ posed conditions of supervised release.

The district court conducted Flores’s sentencing hearing

in October 2018. At the beginning of the hearing, the court

asked Flores if she had the opportunity to read and discuss

her original PSR, the revised PSR, and the addendum to the

report with her a tt orney. Flores responded yes. Next, the

sentencing court noted that the government had no objec

‐

tions to the PSR, but that Flores objected to the two

‐ level in

‐

crease under U.S.S.G. § 2D1.1(b)(1) based on maintaining a

premise for manufacturing or distributing a controlled sub

‐

stance. The court also discussed Flores’s objection to relevant

conduct explaining that the amounts were not included in

the drug quantity analysis, and therefore, had no impact un

‐

der the sentencing guidelines.

Before imposing her sentence, the district judge asked

Flores if there was anything she would like to add. Flores

had prepared a wri tt en allocution, which she read into the

record. She emphasized:

I want to use this time serving my sentence for

some major self

‐ improvement and to acquire skills

and a college degree that will serve me well when I

get home. Whatever the outcome of today ends up

being, I will take every advantage and opportunity

possible to help with my sobriety and restart my

life with a positive perception on how things

should be done rightfully.

After her allocution, the district court sentenced Flores to the

mandatory minimum of 120 months in prison. The court

recommended mental health treatment, drug abuse pro

‐No. 18

‐ 3249 5

grams, and, consistent with Flores’s allocution, educational

and vocational training. Also, the court directed that Flores’s

120 month federal sentence run concurrently with the bal

‐

ance of her state revocation sentence.

The district court further sentenced Flores to the manda

‐

tory eight years of supervised release adopting certain con

‐

ditions set forth in the supervision plan, including the em

‐ ployment condition. The court fi rst noted that neither the

government nor Flores had objected to these conditions. The

court then stated:

[T]he primary goals of supervised release are to

assist the defendant’s transition back into the

community after a term of imprisonment and to

provide rehabilitation. That will be crucial to this

defendant. Supervision in this case will provide the

typical needed programming, including rehabilita

‐

tive programs, assist with community reintegra

‐

tion, and a ff ord supervision necessary to deter and

protect against further criminal acts perpetrated by

the defendant.

...

I’m con fi dent that along with her sporadic em

‐ ployment and outstanding fi nancial obligations

that I have more than amply justi fi ed the conditions

that are being imposed. But as counsel is aware,

there’s some question as to whether I should put

each on the record verbatim and justify them indi

‐ vidually. And I’m happy to do that unless the de

‐

fense wishes to waive my doing so.

Defense counsel responded: “We do waive, Your Honor.

Thank you.”6 No. 18

‐ 3249

The court continued “when the defendant is released

from con fi nement, understanding that will be ten years from

now or thereabouts, [if] either the defendant or the supervis

‐ ing probation o ffi cer should believe that any of the condi

‐

tions imposed today are no longer appropriate, they should

petition the Court for review.”

The district court entered judgment on October 9, 2018,

and Flores fi led a timely notice of appeal.

II

On appeal, Flores argues that the supervised release con

‐

dition requiring her to “maintain lawful employment, seek

lawful employment, or enroll and participate in a course of

study or vocational training that will equip defendant for

suitable employment” is unconstitutionally vague. Flores

speci fi cally takes issue with the word “suitable.”

A

We begin with the di ff erence between forfeiture and

waiver. Waiver occurs when a party intentionally relinquish

‐

es a known right and forfeiture arises when a party inad

‐ vertently fails to raise an argument in the district court.

Olano

, 507 U.S. at 733; United States v. Waldrip

, 859 F.3d 446,

450 (7th Cir. 2017). We review forfeited arguments for plain

error, whereas waiver extinguishes error and precludes ap

‐ pellate review. Olano

, 507 U.S. at 733. Waiver and forfeiture

are related, but distinct, concepts, although at times we have

confused the terms. Waldrip

, 859 F.3d at 450; United States v.

Richardson

, 238 F.3d 837, 841 (7th Cir. 2001).

Because Flores did not object to the challenged super

‐

vised release condition in the district court, the parties assert

that we should review her argument for plain error. We dis

‐No. 18

‐ 3249 7

agree. For plain

‐ error review to apply, “there must be an er

‐

ror that has not been intentionally relinquished or aban

‐

doned.” Molina

‐ Martinez

, 136 S. Ct. at 1343 (citing Olano

, 507

U.S. at 732

‐ 33); see also Rosales

‐ Mireles, 138 S. Ct. at 1904

‐ 05 ;

United States v. Young

, 908 F.3d 241, 246 (7th Cir. 2018). Ap

‐ plying well

‐ known principles, the record makes clear that

Flores waived her appellate challenge to the employment

condition.

In general, criminal defendants must make informed and

intentional decisions when waiving their rights. New York v.

Hill

, 528 U.S. 110, 114 (2000); Olano

, 507 U.S. at 733. Even

“[t]he most basic rights of criminal defendants are

... subject

to waiver[,]” Pere tz v. United States

, 501 U.S. 923, 936 (1991),

but “[w]hat su ffi ces for waiver depends on the nature of the

right at issue.” Hill

, 528 U.S. at 114. “For certain fundamental

rights, the defendant must personally make an informed

waiver,” but for other rights, “waiver may be a ff ected by ac

‐

tion of counsel.” Id. ; see also United States v. Babul

, 476 F.3d

498, 500 (7th Cir. 2007). Our waiver inquiry, therefore, varies

depending on the right at issue and the circumstances of the

case.

In the context of a guilty plea, for example, because the

defendant is waiving several fundamental rights, her waiver

must clear a high bar. United States v. Brady

, 397 U.S. 742, 748

(1970). When accepting a guilty plea, the district judge must

“conduct a long, searching colloquy” to ensure that the de

‐

fendant properly waived her constitutional rights. United

States v. Harden

, 758 F.3d 886, 888 (7th Cir. 2014); see also Fed.

R. Crim. P. 11(b). Similarly, a defendant’s waiver of her Sixth

Amendment right to assistance of counsel must not only be

knowing and intelligent, but also unequivocal. Iowa v. Tovar

,8 No. 18

‐ 3249

541 U.S. 77, 88 (2004); Fare tt a v. California

, 422 U.S. 806, 835

(1975). There, too, the district court must directly engage

with the defendant to con fi rm that her waiver was knowing

and intelligent.

Not every waiver must meet such stringent criteria. A de

‐

fendant waives her right to challenge jury instructions if she

approved of the instructions at the district court. United

States v. Caguana

, 884 F.3d 681, 689 (7th Cir. 2018); United

States v. Gri ffi n

, 84 F.3d 912, 924 (7th Cir. 1996). “We do not

require the defendant personally to waive objection, nor is

the district court required to address the waiver question di

‐ rectly to the defendant.” Gri ffi n, 84 F.3d at 924.

Waiver of most sentencing issues is similar. See United

States v. St. Clair

, ‐‐‐ F.3d

‐‐‐‐ , 2019 WL 2399597, at *2 (7th Cir.

June 7, 2019). We have observed that there is no rigid rule for

fi nding waiver in this context. United States v. Butler

, 777 F.3d

382, 387 (7th Cir. 2015). Instead, we address each omission in

light of the surrounding circumstances to determine whether

the defendant’s decision not to object was knowing and in

‐

tentional. Id .; United States v. Garcia

, 580 F.3d 528, 542 (7th

Cir. 2009).

We often fi nd such intent where the defendant chose—as

a ma tt er of strategy—not to present a conditions

‐ related ar

‐

gument to the district court. See, e.g.

, United States v. Bloch

,

825 F.3d 862, 873 (7th Cir. 2016). A strategic decision is, of

course, an intentional one, and we recognize that defendants

often waive sentencing arguments in bargaining with the

prosecution or in focusing the district court on other, more

pressing sentencing issues. We have thus inferred that a de

‐

fendant’s choice to raise certain objections at sentencing, but

not others, was strategic and intentional. United States v.No. 18

‐ 3249 9

Tjader

, ‐‐‐ F.3d

‐‐‐‐ , 2019 WL 2441073, at *2 (7th Cir. June 12,

2019); United States v. Gumila

, 879 F.3d 831, 838 (7th Cir.

2018). Indeed, a defendant’s “decision to single out and ob

‐ ject to only one condition is the very ‘[t]ouchstone of waiver,’

as it indicates ‘a knowing and intentional decision.’” Bloch

,

825 F.3d at 873 (citation omi tt ed). We have also found waiver

when the defendant had a targeted sentencing strategy that

led him to waive certain other sentencing arguments. See

United States v. Barnes

, 883 F.3d 955, 957–58 (7th Cir. 2018);

United States v. Walton

, 255 F.3d 437, 442 (7th Cir. 2001). All

this stands for a straightforward proposition: In the context

of supervised release conditions, evidence of a strategic rea

‐

son not to object in the district court is a su ffi cient, but not a

necessary, ground on which to fi nd waiver, because it re

‐

fl ects an intentional decision on the defendant’s part.

Moreover, in the speci fi c context of supervised release

conditions, we have provided guidance to ensure defendants

make intentional and informed decisions—decisions that

could eliminate appellate review based on waiver. See United

States v. Lewis

, 823 F.3d 1075, 1081–82 (7th Cir. 2016). As we

explained in Lewis

, “[t]he foundation for these limits on ap

‐ pellate review is that a district judge needs to ensure that

parties have a fair and genuine opportunity to raise objec

‐

tions in the district court.” Id

. at 1081.

An important factor in giving a defendant the opportuni

‐

ty to make an informed and intentional decision about su

‐ pervised release conditions is advance notice of the condi

‐

tions. United States v. Gabriel

, 831 F.3d 811, 814 (7th Cir.

2016); United States v. Kappes

, 782 F.3d 828, 842–43 (7th Cir.

2015). “The goal of providing the parties with advance no

‐

tice of the conditions at issue is to allow the parties to pre

‐10 No. 18

‐ 3249

sent an informed response.” Kappes

, 782 F.3d at 843. We re

‐ cently clarified why advance notice is necessary in making

an informed decision:

A defendant who receives advance notice of

proposed conditions of supervised release has both

the bene fi t of advice of counsel and a full oppor

‐ tunity to raise objections about arguably vague or

unjusti fi ed conditions of supervised release. Sen

‐ tencing in the district court is the time to raise such

issues, not on appeal, for the fi rst time.

St. Clair

, 2019 WL 2399597, at *2.

Last, and most obvious, we have concluded that a de

‐

fendant intentionally waived an appellate challenge to his

supervised release condition when he “affirmatively told the

district court that he had no objection” to the challenged

condition. United States v. Smith

, 906 F.3d 645, 650 (7th Cir.

2018); see also United States v. Schrode

, 839 F.3d 545, 555 (7th

Cir. 2016) (affirmative withdrawal of objections to chal

‐ lenged conditions constitutes waiver). In Smith

, when dis

‐ cussing defendant’s intentional relinquishment, we reasoned

that the “district court expressly invited objections to the

proposed visitation condition, and Smith’s attorney, with the

benefit of having seen the condition in advance, responded

that the condition was ‘reasonable.’” Id

. at 650. We further

articulated that “Smith has not argued that either he or his

attorney was confused or that the response did not indicate

approval.” Id.

Applying these principles to the circumstances of our

case, the record is clear that Flores made a deliberate and in

‐

formed decision when she did not challenge the employ

‐

ment supervised release condition. She had the opportunityNo. 18

‐ 3249 11

to review the probation office’s recommendations with her

attorney in advance of sentencing, and at her sentencing

hearing, the district judge ensured that Flores had reviewed

these conditions with counsel. See St. Clair

, 2019 WL 2399597,

at *2; Gabriel

, 831 F.3d 814. Counsel also filed written objec

‐

tions to the PSR prior to sentencing, objecting to the relevant

conduct calculation and a guideline enhancement, but not

the employment condition. We can reasonably infer from

Flores’s choice to raise certain sentencing objections, but not

others, that her decision was strategic and intentional. See

Gumila

, 879 F.3d at 838.

Flores’s decision to waive an explanation and reading of

the supervised release conditions further confirms her in

‐

tent. Tjader

, 2019 WL 2441073, at *2; Bloch

, 825 F.3d at 872–73.

So, too, does the record as a whole. Flores’s allocution re

‐

flects her desire to engage in meaningful employment and

educational training to restart her life in a positive manner

once she has served her sentence—another indication that

her decision not to object to the employment condition was

strategic. See Barnes

, 883 F.3d at 958.

Due to Flores’s intentional relinquishment of her right to

appeal the claimed error, we are precluded from reviewing

her appellate argument. See Young

, 908 F.3d at 246 (“An ap

‐ pellate court need not consider a claimed error if the issue

has been waived.”). We affirm on this basis.

B

In so holding, we are aware of the inconsistencies in our

case law and that we have not always applied waiver in this

context. To start, because we liberally construe waiver in fa

‐

vor of defendants, see Butler

, 777 F.3d at 387, we were willing12 No. 18

‐ 3249

to exercise our discretion and overlook a signed appellate

waiver in the rare and limited instance when a condition

was unconstitutionally vague and overbroad in that it pro

‐

hibited activities protected by the First Amendment and “no

reasonable person could know what conduct is permitted

and what is prohibited[,]” in United States v. Adkins

, 743 F.3d

176, 193 (7th Cir. 2014). See United States v. Campbell

, 813 F.3d

1016, 1018 (7th Cir. 2016). In other cases, we did not address

waiver in light of intervening changes in supervised release

conditions prompted by our decision in United States v.

Thompson

, 777 F.3d 368 (7th Cir. 2015). See, e.g., United States

v. Gill, 824 F.3d 653, 661 (7th Cir. 2016); United States v. Pou

‐

lin

, 809 F.3d 924, 930–31 (7th Cir. 2016). Neither concern is

present here.

In other decisions, we simply did not address waiver

when applying plain

‐ error review. See, e.g., Kappes

, 782 F.3d

at 844; United States v. Ross

, 475 F.3d 871, 873 (7th Cir. 2007);

United States v. McKissic

, 428 F.3d 719, 721–22 (7th Cir. 2005).

None of these cases, however, held that waiver did not apply

in this context. At most, they assumed that forfeiture gov

‐

erned. It is well

‐ established “that the unexamined assump

‐

tions of prior cases do not control the disposition of a con

‐

tested issue.” Stanek v. St. Charles Cmty. Unit Sch. Dist. No.

303

, 783 F.3d 634, 640 (7th Cir. 2015). And our earlier as

‐ sumptions do not withstand scrutiny, as the Supreme Court,

like us, has made clear that waiver is a threshold considera

‐

tion when reviewing for plain error. Olano

, 507 U.S. at 733;

Young

, 908 F.3d at 246.

We make the point again today. When a defendant does

not address supervised release conditions in the district

court, this court will assess whether she waived those chal

‐No. 18

‐ 3249 13

lenges. We will find waiver, as we do here, when the de

‐

fendant 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 justifications,

challenges certain conditions but not the one(s) challenged

on appeal, or otherwise evidences an intentional or strategic

decision not to object. 1

C

On a final note, at oral argument, the government articu

‐

lated that it relied on our prior cases when asserting that

plain

‐ error review applied. See, e.g., Poulin

, 809 F.3d at 930–

31. Flores’s appellate counsel countered that the government

waived its waiver defense by agreeing to plain

‐ error review.

Normally, we would enforce the government’s waiver, but

we are not obligated to do so. See United States v. Combs

, 657

F.3d 565, 571 (7th Cir. 2011) (per curiam); United States v.

Schmidt

, 47 F.3d 188, 190 (7th Cir. 1995).

Here, we decline to enforce the government’s waiver due

to the inconsistencies in our case law regarding plain

‐ error

review in the supervised release context, as discussed direct

‐ ly above, and our previous confusion over the terms forfei

‐

ture and waiver. Further, in the face of the recent influx of

supervised release condition challenges before this court

where such conditions were not challenged before the dis

‐

trict court, we are compelled to emphasize that waiver is

part of our plain

‐ error review.

1 Before issuing this opinion, we circulated it to all judges in active

service under Circuit Rule 40(e). No judge voted to hear this case en banc

.14 No. 18

‐ 3249

III

The district court gave Flores every opportunity to make

the challenge she makes now on appeal. Flores expressly de

‐

clined. That precludes our appellate review, but it does not

permanently bind Flores. We have long assumed that proba

‐

tion officers work with defendants, not against them, to help

defendants transition back into society after prison. They do

not, and must not, nitpick defendants and seek reprimands

or revocations over small, unreasonable concerns. There is

another safety valve as well, even for defendants who waive

conditions challenges on direct appeal. Should certain condi

‐

tions prove too onerous or ill

‐ defined, or should circum

‐

stances change during incarceration or after release, 18

U.S.C. § 3583(e)(2) allows defendants like Flores to petition

the court for a modification of their supervised release con

‐

ditions, as the district court properly informed Flores here.

For today, however, Flores intentionally waived her right

to challenge the employment condition, and so we affirm.