United States v. Rayshaun Roach ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-1870 & 18-3096
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MITREL Y. ANDERSON and RAYSHAUN ROACH,
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.
____________________
ARGUED DECEMBER 18, 2019 — DECIDED JANUARY 30, 2020
____________________
Before HAMILTON, BRENNAN, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. We have before us criminal de-
fendants contending for the first time on appeal that a condi-
tion 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 no
uncertain terms—that a defendant who receives an oppor-
tunity to object to a proposed condition of supervised release
2 Nos. 18-1870 & 18-3096
at sentencing but fails to do so waives his objection. That bind-
ing precedent is the law of the Circuit. It resolves these ap-
peals, so we affirm.
Mitrel Anderson and Rayshaun Roach each pleaded guilty
to federal drug crimes and were sentenced to terms of impris-
onment and supervised release. Before their sentencings, both
defendants received Presentence Investigation Reports (or
PSRs) that proposed, among others, a supervised release con-
dition providing that they “not patronize any taverns, bars,
liquor stores, nightclubs or other establishments where the
primary item of sale is alcohol.” While Anderson and Roach
both objected in writing to certain supervised release condi-
tions, with Anderson also contending that an alcohol condi-
tion was unnecessary, neither defendant raised a concern that
the alcohol condition was unconstitutionally vague.
At their sentencings, both defendants confirmed that they
had read their PSRs, reviewed the reports with their counsel,
and waived an oral reading of the proposed supervised re-
lease conditions. But at no point during sentencing did either
defendant say anything about the alcohol condition being
vague.
So this makes us the first 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 the
Nos. 18-1870 & 18-3096 3
proposed conditions, a meaningful opportunity to object, and
she asserts (through counsel or directly) that she does not ob-
ject to the proposed conditions, waives reading of those con-
ditions and their justifications, challenges certain conditions
but not the one(s) challenged on appeal, or otherwise evi-
dences an intentional or strategic decision not to object.” Be-
fore 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 decisions
beginning in 2014, we often excused or overlooked defend-
ants’ failures to raise vagueness 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). Before those decisions, however,
we had most often applied ordinary standards of appellate
review, waiver, and forfeiture to issues concerning super-
vised 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 refine waiver rules, and that effort culminated in Flo-
res. The Rule 40(e) circulation in Flores reinforces that our de-
cision reflects 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, clarified 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 132749, at *3 (7th Cir.
Jan. 13, 2020) (applying waiver where the defendant selec-
tively 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 chal-
lenged 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)
(finding a clear waiver where defendant objected to none of
the conditions). Put most simply, Flores was not a mistaken
fluke—it is controlling law.
Anderson and Roach waived their argument that the alco-
hol condition was unconstitutionally vague in nearly every
way that Flores identifies:
 Both defendants received advance notice of
the proposed condition in their PSRs, but
then both failed to raise the vagueness argu-
ment in their written objections, despite pre-
senting other challenges; and
 Both defendants likewise confirmed at sen-
tencing 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 opportunities 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 reflects the law of the Circuit, in
no way are we questioning whether unconstitutional vague-
ness 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
first be raised in the district court. Because that did not hap-
pen here, we AFFIRM.