United States v. Joseph Canfield ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3145
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH CANFIELD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 07-cr-20065 — Michael M. Mihm, Judge.
____________________
ARGUED MARCH 31, 2021 — DECIDED JUNE 21, 2021
____________________
Before SYKES, Chief Judge, and FLAUM and EASTERBROOK,
Circuit Judges.
FLAUM, Circuit Judge. Defendant-appellant Joseph Can-
field was sentenced to prison and supervised release for pos-
sessing child pornography. In a subsequent proceeding for
revocation of his supervised release, the district court sen-
tenced Canfield to twenty months’ imprisonment and an ad-
ditional five years’ supervised release, a term of supervised
release which all parties referred to as “mandatory.” In this
2 No. 20-3145
appeal, Canfield challenges the application of the additional
five-year term as not actually mandatory but instead the re-
sult of a mutual mistake.
Going no further than our threshold waiver inquiry, we
now affirm the judgment of the district court. Canfield had
ample advance notice of the terms of his supervised release,
was given a meaningful opportunity to object, indeed ad-
vanced several objections to those terms, and went so far as to
affirmatively advance the argument he now challenges on ap-
peal. Those actions amount to waiver.
I. Background
In January 2008, the district court sentenced Canfield to
seventy-eight months’ imprisonment and three years’ super-
vised release for knowingly possessing child pornography in
violation of 18 U.S.C. § 2252A(a)(5)(B). After his release from
custody, Canfield commenced supervision in June 2013, sub-
ject to a series of special conditions.
Canfield’s first several years of supervision went without
incident. The district court modified conditions of Canfield’s
supervised release in May 2016, however, to extend super-
vised release for an additional one-year period to allow for
him to meet treatment goals and successfully complete sex of-
fender counseling. In response to the probation office’s con-
cern about Canfield’s “high risk behavior in violation of his
conditions of supervision,” the district court again modified
conditions of his supervised release in October 2016, extend-
ing supervision for an additional one-year period and requir-
ing 180 days of home confinement. Specifically, Canfield had
purchased an unreported smartphone with unfiltered inter-
net access and used it to view adult pornography and also
No. 20-3145 3
used his mother’s smartphone, without her permission, to
view adult pornography. Moreover, a police search of his res-
idence found two DVDs containing adult pornography,
which Canfield admitted to purchasing.
A. First Revocation
The district court subsequently revoked Canfield’s super-
vised release several times. First, in March 2017, the probation
office filed a petition to revoke Canfield’s supervised release.
The petition cited Canfield’s failure to participate in sex of-
fender treatment (“unsuccessful[] discharge[] from sex of-
fender treatment services … for failing to follow the treatment
program rules and noncompliance with his treatment plan”)
and unauthorized contact with a person under the age of
eighteen (“unsupervised contact with a 9 month old female
infant”) as grounds for supervision revocation. Following a
hearing on the petition in May 2017, the district court revoked
Canfield’s supervised release and imposed a new sentence of
six months’ imprisonment and five additional years’ super-
vised release. In the record of Canfield’s supervised release
revocation and sentencing proceedings, the district judge
noted that “[t]he supervised release period would be not less
than five years up to life minus any term of imprisonment im-
posed upon revocation.”
Following an appeal, 1 the district court entered an
amended revocation judgment in November 2018. The
1 On appeal, we vacated three conditions of Canfield’s supervised re-
lease: third-party risk notification, drug testing and substance abuse treat-
ment, and a prohibition on all access to sexually explicit material. We af-
firmed the condition banning use of the internet to access sexually explicit
material. See United States v. Canfield, 893 F.3d 491, 498 (7th Cir. 2018).
4 No. 20-3145
district court entered other uncontested modifications to Can-
field’s supervised release between December 2018 and Sep-
tember 2019.
B. Second Revocation
At the end of December 2019, the probation office filed a
second petition to revoke Canfield’s supervised release. The
petition cited Canfield’s failure to participate in sex offender
treatment on account of “numerous treatment contract viola-
tions and excessive absences” and “possession of an unre-
ported internet capable cell phone … with no filtering soft-
ware installed.” The probation office filed a supplemental pe-
tition in February 2020, noting Canfield’s unsuccessful dis-
charge from substance abuse treatment for “consistently mak-
ing inappropriate comments in treatment … and for being
consistently late or missing scheduled counseling groups.”
Canfield was taken into custody and detained in March 2020.
In June 2020, the parties agreed to a modification of the terms
of supervision, and the district court entered a corresponding
order directing Canfield to serve ninety days at the Ford
County Jail with credit for time served and ninety days in
home confinement. As a result, the district court granted the
government’s motion to withdraw the petition to revoke su-
pervised release.
C. Third Revocation
In July 2020, the probation office filed a third petition to
revoke Canfield’s supervised release, alleging that he had un-
authorized contact with a person under the age of eighteen.
Two minor females, both age sixteen, reported living at Can-
field’s apartment for four to five days. After Canfield was
charged in state court with violations of Illinois sex-offender
No. 20-3145 5
laws for failure to register within three days after beginning
to reside in a household with a child under eighteen years of
age who is not his own child, the probation office amended
this petition to revoke supervised release to include a viola-
tion of his supervision condition requiring that he not commit
another federal, state, or local crime. A magistrate judge or-
dered Canfield detained pending the violation hearing.
Prior to the hearing, defense counsel noted that Canfield’s
anticipated penalties under the U.S. Sentencing Guidelines
would include “3 to 9 months imprisonment, plus five addi-
tional years of supervised release.” Relevant to this appeal,
the violation memorandum, filed by the probation office four
weeks before the revocation hearing, stated under “Statutory
Supervised Release Provisions” that the applicable sentenc-
ing options were “[n]ot less than 5 years to life” and specifi-
cally referenced 18 U.S.C. § 3583(k).
At the beginning of Canfield’s revocation hearing, his at-
torney noted that she had reviewed the petitions and viola-
tion memorandum with Canfield. Before accepting Canfield’s
guilty plea, the court recited the applicable penalties. Canfield
himself confirmed he had reviewed the report and, when
given the opportunity by the court, challenged only an inac-
curacy that his counsel characterized as “irrelevant.” Counsel
made clear in this hearing that Canfield’s priority was to
“get … done with supervised release to the best of our abil-
ity.”
In response to his guilty plea, the district court revoked
Canfield’s supervised release and sentenced him to twenty
months’ imprisonment and an additional five years’ super-
vised release. Prior to imposing the sentence, the district court
adopted the recommended sentencing ranges for
6 No. 20-3145
imprisonment and supervised release as summarized in the
violation memorandum, which included a “minimum” su-
pervised release term of five years. Although Canfield’s coun-
sel objected to one proposed supervision condition, she made
no objections to the sentencing range, which encompassed a
minimum supervised release term of five years. Indeed, both
government and defense counsel referred to the five-year su-
pervised release term as “mandatory.” Canfield waived a
reading of the conditions of supervision. The district court en-
tered a final judgment on October 23, 2020.
Canfield now appeals.
II. Discussion
Canfield contends the district court plainly erred in sen-
tencing him to a five-year term of supervised release, raising
for the first time on appeal the argument that this sentence
was not actually mandatory under 18 U.S.C. § 3583(k). As rel-
evant here, two statutory provisions govern the inclusion of a
term of supervised release after a defendant’s imprisonment:
18 U.S.C. § 3583(h), directed at supervised release following
revocation, and § 3583(k), directed in part at the authorized
term of supervised release for offenses under 18 U.S.C.
§ 2252A. The crux of Canfield’s argument is that the five-year
mandatory minimum found in § 3583(k)’s first clause is rele-
vant only at an initial sentencing hearing, while § 3583(h),
which mentions no mandatory minimum, governs this impo-
sition of a supervised release term following revocation.
Although we generally review statutory interpretation
questions de novo, see United States v. Shaw, 957 F.3d 734, 738
(7th Cir. 2020), a challenge not raised before the district court
is, at best, reviewed for plain error, see United States v. Flores,
No. 20-3145 7
929 F.3d 443, 447 (7th Cir.), cert. denied, 140 S. Ct. 504 (2019).
“The first step in plain-error review, as the Supreme Court has
repeatedly said, is to ask whether the defendant intentionally
relinquished the challenge [he] now presents.” Id. at 445 (cit-
ing cases). If yes, appellate review is precluded. See id. at 447.
We begin and end our inquiry at this first step of plain-
error review. That “the failure to make timely assertion of …
right[s] before a tribunal having jurisdiction to determine
[them]” may limit appellate consideration is a procedural
principle quite familiar to courts. United States v. Olano,
507 U.S. 725, 731 (1993) (quoting Yakus v. United States,
321 U.S. 414, 444 (1944)). We categorize unraised arguments
as either waived or forfeited. In the context of sentencing,
“[w]aiver occurs when a party intentionally relinquishes a
known right and forfeiture arises when a party inadvertently
fails to raise an argument in the district court.” Flores, 929 F.3d
at 447 (first citing Olano, 507 U.S at 733; and then citing United
States v. Waldrip, 859 F.3d 446, 450 (7th Cir. 2017)). We con-
strue waiver principles “liberally in favor of the defendant.”
United States v. Butler, 777 F.3d 382, 387 (7th Cir. 2015) (citing
United States v. Anderson, 604 F.3d 997, 1002 (7th Cir. 2010)).
Accepting that even “[t]he most basic rights of criminal
defendants are … subject to waiver,” Peretz v. United States,
501 U.S. 923, 936 (1991), “[w]hat suffices for waiver depends
on the nature of the right at issue,” New York v. Hill, 528 U.S.
110, 114 (2000); see also Olano, 507 U.S. at 733 (“Whether a par-
ticular right is waivable; whether the defendant must partici-
pate personally in the waiver; whether certain procedures are
required for waiver; and whether the defendant’s choice must
be particularly informed or voluntary, all depend on the right
at stake.”).
8 No. 20-3145
Adhering to this rights-dependent framework, we re-
cently clarified our approach to waiver and forfeiture in the
context of supervised release conditions challenged for the
first time on appeal. In United States v. Flores, we explained:
We will find waiver [of objections to supervised
release conditions] … when the defendant has
notice of the proposed conditions, a meaningful
opportunity to object, and [he] asserts (through
counsel or directly) that [he] does not object to
the proposed conditions, waives reading of
those conditions and their justifications, chal-
lenges certain conditions but not the one(s) chal-
lenged on appeal, or otherwise evidences an in-
tentional or strategic decision not to object.
929 F.3d at 450.
Here, finding these factors enumerated in Flores satisfied,
and unmoved by Canfield’s claims of inadvertent attorney ac-
tion, we now find waiver. By following Flores, “we [do] not
abandon our responsibility to review conditions of super-
vised release” but rather “restore[] the regular processes of
appellate review to challenges to supervised release, which
should be raised first in the district courts.” United States v.
Hunt, 930 F.3d 921, 925 (7th Cir. 2019).
A. Advance Notice of Proposed Conditions
Guided by the principle outlined in Flores, we first ask if
Canfield had sufficient advance notice of the proposed condi-
tions, specifically, the “mandatory” supervised release term.
See Flores, 929 F.3d at 450. Before sentencing Canfield to jail
and reimposing supervised release, the district judge specifi-
cally asked Canfield: “Did you have a reasonable opportunity
No. 20-3145 9
to read this [presentence] report and review it with your at-
torney?” He responded yes.
Unexpected conditions with respect to supervised release
undercut a finding of advance notice and thus caution against
waiver. Compare United States v. Thompson, 777 F.3d 368, 378–
79 (7th Cir. 2015) (finding no waiver when suggested condi-
tions of supervised release “were sprung on the defendant at
the sentencing hearing”), with United States v. Gumila, 879 F.3d
831, 837 (7th Cir. 2018) (finding waiver in part because the
presentence report gave “written notice of the proposed term
and conditions of supervised release,” along with justifica-
tions for each, “well in advance of the sentencing hearing”).
No such unexpected conditions or surprises were present
in this case. This fact distinguishes the case at hand from
United States v. Wylie, 991 F.3d 861 (7th Cir. 2021), which Can-
field points to as dispositive. In Wylie, the Presentence Inves-
tigation Report (“PSR”) indicated the court could impose a
sentence below the statutory minimum because all require-
ments of the “safety valve” under 18 U.S.C. § 3553(f) were
met, and the district court in turn adopted the PSR prepared
by the probation office at the sentencing hearing. Wylie,
991 F.3d at 862. Directly contradicting its adoption of the PSR,
however, the district court concluded by stating: “The crime
of conviction requires that you get a term of supervised re-
lease that’s at least five years long. I don’t see a reason to make
it any longer so I would propose to impose that five-year
term.” Id. We found the defendant forfeited, but did not
waive, his objection that the district court imposed the term
of supervised release under the erroneous belief that it was
bound by a statutory minimum. Id. at 863.
10 No. 20-3145
In arguing for forfeiture now, Canfield equates the mutual
mistake in the present case with the “misapprehension” about
imposing a mandatory-minimum term of supervised release
in Wylie. Despite certain factual similarities between the cases,
we reject that comparison. Canfield was extended advance
notice, while the defendant in Wylie was not—considering the
district court’s change in course at the sentencing hearing in
that case. See id. at 862. Thus, Canfield’s advance notice con-
forms with the requirements of waiver under Flores.
B. Opportunity to Object and Actual Objection
We next look to whether Canfield had a meaningful op-
portunity to object, failed to object, waived reading of the con-
ditions of his supervised release, and selectively challenged
certain conditions but not the one presently on appeal. See Flo-
res, 929 F.3d at 450. Without the need for detailed analysis, we
conclude these factors support our finding that Canfield has
waived his argument on appeal.
At two points in the sentencing hearing, the district judge
inquired whether Canfield felt anything in the updated
presentence report was “inaccurate or incomplete” and gave
him the opportunity to challenge the recommended condi-
tions of supervised release. Canfield’s counsel challenged the
supervised release condition restricting his ability to continue
seeing his girlfriend due to her felony conviction, and Can-
field himself raised a factual inaccuracy within the report. The
district court rejected the first challenge, deemed the second
irrelevant, and denied Canfield’s motion. Canfield confirmed
he had no additional objections and waived reading of the
conditions of supervised release. At no point was the manda-
tory nature of the five-year supervised release term raised or
otherwise disputed.
No. 20-3145 11
In this context, Canfield’s decision to selectively object to
conditions is “the very [t]ouchstone of waiver,” evidencing a
“knowing and intentional decision.” Flores, 929 F.3d at 448 (al-
teration in original) (internal quotation marks omitted) (quot-
ing United States v. Bloch, 825 F.3d 862, 873 (7th Cir. 2016)).
Given the facts of this case, Canfield’s multiple opportunities
to object and decision to selectively object to the supervised
release conditions aligns with a finding of waiver under Flo-
res.
C. Other Evidence of Intentional or Strategic Deci-
sion Not to Object
We finally ask if, taken together, the record provides other
evidence of an intentional or strategic decision not to object.
See id. at 450. We have previously found forfeiture, not
waiver, in the sentencing context when a defendant’s “failure
to object … resulted from an oversight by defense counsel and
was therefore ‘accidental rather than deliberate.’” United
States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005) (quot-
ing United States v. Richardson, 238 F.3d 837, 841 (7th Cir.
2001)). Today, we address waiver in the context of an affirm-
ative advancement, meaning the presentation of a specific ar-
gument to the court, as distinct from silence or a reflexive “no
objection” response during a rote colloquy. We take this op-
portunity to clarify that affirmative advancement of a “man-
datory” supervised release term, even if premised on a mu-
tual mistake about applicable supervised release conditions,
evidences an intentional decision for the purposes of appel-
late waiver analysis.
At the outset, we note that we are unconvinced by the gov-
ernment’s argument that reasonable defense counsel would
frame a discretionary term of supervision as mandatory to
12 No. 20-3145
gain a strategic advantage, especially given counsel’s clear ar-
ticulation of defendant’s primary goal of expedient comple-
tion of supervised release. Lack of strategic purpose alone,
however, is not enough to find forfeiture. As we have previ-
ously observed, “[w]hile there may not be a good strategic rea-
son for holding back a valid objection to a condition, that fact
does not render the defendant’s decision any less inten-
tional.” Bloch, 825 F.3d at 873.
Given this emphasis on intentionality, we now underscore
the distinctions between a negligent omission and an affirm-
ative advancement of a term of supervised release. Negligent
omission supports a finding of forfeiture—i.e., of no waiver.
See Butler, 777 F.3d at 386–87 (finding forfeiture when “the
record” evidenced counsel’s failure to raise an argument was
“due to negligence,” devoid of any “manifestation of an in-
tentional choice not to assert a right”); Jaimes-Jaimes, 406 F.3d
at 848 (finding forfeiture when “an ambiguous record” evi-
denced counsel’s failure to raise an argument resulted from
an oversight). By contrast, the record here is not ambiguous;
instead, the record evidences intentionality through defense
counsel’s affirmative advancement of the five-year manda-
tory-minimum term of supervised release. To preserve the
functionality of waiver doctrine, we limit the negligent omis-
sion carve out, finding it inapplicable in cases of affirmative
advancement of supervised release terms, such as this one.
We find support for this position outside the supervised
release context. For example, we have differentiated between
“negligently bypass[ing] an opportunity to challenge” and
“affirmative[ly] approv[ing]” of a proposed jury instruc-
tion—with the first lending itself to forfeiture and the second
resulting in waiver. United States v. LeBeau, 949 F.3d 334, 341–
No. 20-3145 13
42 (7th Cir. 2020). Here, as in analogous contexts, we under-
score that “a court cannot easily discern whether the attorney
bypassed a challenge for strategic reasons (which would re-
sult in waiver) or whether the attorney simply failed to recog-
nize error that [they] otherwise would have raised” from such
a statement. See United States v. Natale, 719 F.3d 719, 730 (7th
Cir. 2013).
Although our waiver inquiry is not rigid but instead “var-
ies depending on the right at issue and the circumstances of
the case,” Flores, 929 F.3d at 448, the above reasoning is per-
suasive in the supervised release context and comports with
existing caselaw. Our precedent indicates that when a defend-
ant “specifically requested” a supervised release condition, he
cannot then challenge that condition on appeal; such a request
“constitutes waiver.” United States v. Golden, 843 F.3d 1162,
1167 (7th Cir. 2016); see also United States v. Cary, 775 F.3d 919,
927 (7th Cir. 2015) (“By asking for the very condition the court
subsequently imposed, [the defendant] waived any argument
against it.”); cf. United States v. Seals, 813 F.3d 1038, 1045 (7th
Cir. 2016) (noting waiver at sentencing is undercut when a de-
fendant “never actively disclaimed the positions he now
raises” on appeal). Even amid allegations of counsel negli-
gence, we find when “counsel affirmatively used the evidence
to which [the defendant] now objects as part of his theory of
the case” that “[w]e are hard-pressed to interpret this as a for-
feiture.” United States v. Cooper, 243 F.3d 411, 417 n.3 (7th Cir.
2001).
Any other finding would put courts in the difficult situa-
tion of attempting to discern whether an attorney bypassed a
challenge negligently or for strategic reasons. Given that both
explicit approval of sentencing conditions and strategic
14 No. 20-3145
decisions not to raise an argument indicate waiver, see United
States v. Farmer, 755 F.3d 849, 853 (7th Cir. 2014), we reject that
the affirmative advancement of a mandatory five-year term of
supervised release, even if premised on a mutual mistake by
all parties, should be treated the same as accidental silence.
To find otherwise would render our waiver doctrine function-
ally useless. We decline to do so.
III. Conclusion
Regardless of whether the affirmative advancement in
question here “was an oversight” or “reflected sound strat-
egy,” the principle outlined in Flores requires us to find Can-
field’s challenge waived under the facts and circumstances of
his case. See United States v. Barrett, 981 F.3d 644, 645-46 (7th
Cir. 2020) (holding when “[e]very condition identified in Flo-
res is present[,] … that reality forecloses our review of [de-
fendant’s] belated challenge”). While direct appeal is not
available, Canfield is not foreclosed from pursuing collateral
review for an ineffective assistance of counsel claim under
28 U.S.C. § 2255.
For these reasons, we AFFIRM Canfield’s sentence.