United States v. Rashad Robinson ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐2441
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
RASHAD RAE ROBINSON,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:16‐cr‐00040‐RLY‐CMM‐1 — Richard L. Young, Judge.
____________________
ARGUED FEBRUARY 26, 2020 — DECIDED JULY 7, 2020
____________________
Before ROVNER, WOOD and BARRETT, Circuit Judges.
ROVNER, Circuit Judge. Rashad Rae Robinson pled guilty to
a conspiracy to distribute methamphetamine after he was
caught in a controlled buy. The only question we face in this
appeal is, “In his plea, how much methamphetamine did he
admit to selling?” And, of course, this question is only rele‐
vant because Robinson contends his prison sentence is too
long. Robinson claims on appeal that although the govern‐
ment indicted him for a participating in a conspiracy
2 No. 19‐2441
involving 500 grams or more of methamphetamine, he only
pled guilty to a conspiracy involving a lesser or unspecified
amount. The facts indicate otherwise and we affirm the dis‐
trict court’s holding.
I.
The dominos began to fall around Robinson after one of
his customers, Joshua Jacobs, sold methamphetamine to a
confidential source. Following his arrest, Jacobs stated that he
purchased the methamphetamine from Robinson, and had
done so ten to twelve times, totaling approximately one
pound (450g) of methamphetamine. The next day, as officers
listened in on a recorded call, Robinson agreed to deliver
more methamphetamine to Jacobs. Robinson was arrested
shortly thereafter, and in a search incident to arrest, police
found 86.4 grams of methamphetamine and $2,575 in his pant
leg.
The government filed the following indictment:
Beginning on or about January 1, 2016, and con‐
tinuing up to and through July, 2016, in the
Southern District of Indiana, Evansville Divi‐
sion, and elsewhere, RASHAD RAE
ROBINSON, JOSHUA JACOBS, TANNER
MCCOY, and BRANDI NICHOLE ADDISON,
defendants, did knowingly conspire together
and with diverse other persons, known and un‐
known to the Grand Jury, to possess with the in‐
tent to distribute and to distribute 500 grams or
more of a substance containing a detectable
amount of methamphetamine, a Schedule II
Non‐Narcotic Controlled Substance, in
No. 19‐2441 3
violation of Title 21, United States Code, Sec‐
tions 841(a)(1), 841(b)(1)(A) and 846.
(R. 12).
Robinson pled guilty to this indictment at a plea hearing.
This ought to end the story. In this appeal, however, Robinson
argues that despite the clear language in the indictment
above, he did not plead guilty to an offense punishable under
21 U.S.C. §841(b)(1)(A) involving 500 grams or more of meth‐
amphetamine,1 but rather pled guilty to, at most, an offense
involving a lesser amount of methamphetamine under 21
U.S.C. §841(b)(1)(B).2 A review of the facts reveals otherwise.
Robinson admitted to the facts implicating him in the greater
crime—21 U.S.C. §841(b)(1)(A)—in documents filed before
the plea hearing, at the plea hearing itself, by admitting to the
facts in the presentence investigation report, and at sentenc‐
ing. We describe each of these, in turn.
A. The plea phase
Leading up to the change of plea hearing, Robinson filed
a Petition to Enter a Plea of Guilty, affirming that he had “read
and discussed the Indictment with my attorney and believe
and feel that I understand every accusation made against
1 21 U.S.C. §841(b)(1)(A)(viii) (“50 grams or more of methamphetamine,
its salts, isomers, and salts of its isomers or 500 grams or more of a mixture
or substance containing a detectable amount of methamphetamine, its
salts, isomers, or salts of its isomers”)
2 21 U.S.C. §841(b)(1)(B)(viii) (“5 grams or more of methamphetamine, its
salts, isomers, and salts of its isomers or 50 grams or more of a mixture or
substance containing a detectable amount of methamphetamine, its salts,
isomers, or salts of its isomers.”)
4 No. 19‐2441
me.” (R. 127 at 2). He also stated, “I wish to plead ‘Guilty,’ and
respectfully request the Court to accept my plea as follows:
‘Guilty’ as charged to Count One of the Indictment filed
against me.” Id. at 4. (underlining in original). Count one of
the indictment, of course, described a conspiracy involving
500 grams or more of methamphetamine under §841(b)(1)(A).
He also agreed that he had been advised that the minimum
sentence provided by the statute was ten years and the maxi‐
mum was life. Id. This is the statutory minimum and maxi‐
mum provided by §841(b)(1)(A). He further stated that he
made no claim of innocence. Id.
In exchange for the plea, the government agreed not to
seek an increased sentence based on his prior felony convic‐
tions pursuant to 21 U.S.C. §851. (R. 161 at 3). The govern‐
ment’s lawyer also stated that she believed that the base of‐
fense level would be a 36, which is consistent with a guilty
plea under §841(b)(1)(A). Id. In sum, before either party en‐
tered the courtroom, both sides had agreed that Robinson
would plead guilty to §841(b)(1)(A)—a conspiracy involving
500 grams or more of methamphetamine.
Once all of the parties were standing before the district
court, the colloquy before the judge reflected the agreement
that Robinson would plead guilty to a conspiracy involving
500 grams or more of methamphetamine:
THE COURT: The grand jury charges beginning
on or about January 1, 2016, and continuing up
to and through July 2016, Southern District of
Indiana, Evansville Division and elsewhere,
Rashad Rae Robinson, Joshua Jacobs, Tanner
McCoy, and Nichole Brandi Addison [sic], de‐
fendants, did knowingly conspire together with
No. 19‐2441 5
diverse other persons known and unknown to
the grand jury, to possess with the intent to dis‐
tribute and distribute 500 grams or more of a
substance containing a detectable amount of
methamphetamine, a Schedule II nonnarcotic
controlled substance, all in violation of 21 U.S.
Code Section[s] 841 and 846.
Mr. Robinson, do you understand the nature of
that allegation?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Is that true?
THE DEFENDANT: Yes, Your Honor.
Id. at 14 (emphasis ours). In short, Robinson admitted at the
plea hearing that he participated in a conspiracy involving
500 grams or more of methamphetamine.
B. The sentencing phase
In the sentencing phase, Robinson made several more im‐
plicit and explicit admissions to the drug amount. In his writ‐
ten objections to the presentence investigation report (PSR),
Robinson disagreed with the characterization of his role as a
“leader,” and to the calculation of his criminal history points.
(R. 136, 138).3 Thus, despite understanding that he could ob‐
ject to information in the PSR with which he disagreed, Rob‐
inson made no objections to the drug quantity amount or to
3 The district court judge ultimately agreed that Robinson was not a leader
but overruled his objection to the criminal history points. R. 158 at 21.
6 No. 19‐2441
the fact that he believed he had been convicted under the
wrong subsection of 21 U.S.C. §841.
The sentencing proceedings continued in a manner con‐
sistent with the pre‐hearing filings. At the very start of the
sentencing hearing, the judge explained that Robinson was
before the court for a crime involving 500 grams or more of
methamphetamine. The district court judge stated: “My rec‐
ord reflects on February 28, 2019, [the] Court found an inde‐
pendent factual basis for the defendant’s plea to conspiracy to
possess with the intent to distribute and distribute 500 grams
or more of methamphetamine, a violation of 21 U.S. Code sec‐
tion 841(a)(1) and 846.” (R. 158 at 2). Robinson’s counsel con‐
firmed that this was his understanding of the record as well.
Id.As the sentencing hearing continued, the district court
judge also asked both parties if they had had the opportunity
to review the information in the PSR, and then stated, “I note
no objections from the government. There are apparently two
objections from the defendant. But other than the objections
that were filed, objection No. 1 and objection No. 2, Mr. Rob‐
inson, is the information contained in the presentence report
true and accurate?” (R. 158 at 3). The defendant himself an‐
swered, “Yes, your honor.” Id. at 4. When Robinson affirmed
that all of the information in the PSR was “true and accurate,”
this included a description of the charged crime—conspiracy
to distribute 500 grams or more of methamphetamine. Id. At
3–4. Based on this admission—that the PSR was true and ac‐
curate—the district court adopted the findings in the PSR re‐
garding the nature of the offense. Id. at 5 (“Parties indicating
to the Court the information contained in the presentence re‐
port is true and accurate and the Court will adopt the findings
No. 19‐2441 7
of the probation officer regarding the offense conduct as its
own findings regarding the nature and circumstances of the
offense.”) These adopted findings included the fact that the
“[c]onspiracy was responsible for at least 1.5 but less than 4.5
kilograms of methamphetamine ice.” Id. at 7, 15. When the
judge announced the sentence associated with this amount of
methamphetamine (“Base offense level is 36 when the offense
involves at least 1.5 kilograms but less than 4.5 kilograms of
methamphetamine ice,”), again Robinson did not object. Id. at
8, 15. Other than his objections to the career offender and lead‐
ership enhancements, Robinson asserted, once on his own,
and once through counsel, that he had no other objections. Id.
at 15, 22. And finally, at the end of sentencing, the judge
stated, the “[c]ourt now enters judgment of conviction on
Count 1, conspiracy to possess with the intent to distribute
and distribute 500 grams or more of methamphetamine, a vi‐
olation of 18 U.S. Code Section—excuse me, 21 U.S. Code Sec‐
tion 841(a)(1) and 846.” Id. at 57–58. Robinson had no objec‐
tion to the drug amount, the provision under which he was
being sentenced, or the entry of judgment. Robinson’s sen‐
tencing range under the United States Sentencing Guidelines
was 262 to 327 months. The district court judge departed
downward and sentenced Robinson to 200 months.
To sum up, Robinson affirmatively agreed to or acqui‐
esced to the amount of drugs involved in the conspiracy re‐
peatedly throughout the plea and sentencing phases. All of
the multiple admissions of drug quantity therefore belie Rob‐
inson’s claim that he did not plead guilty to a conspiracy in‐
volving 500 grams or more of methamphetamine. Neverthe‐
less, Robinson argues that he entered a plea to conspiracy to
distribute methamphetamine without admitting to any quan‐
tity, and that therefore, “[a]t worst, this admission may have
8 No. 19‐2441
been sufficient … for the district court to sentence Robinson
under §841(b)(1)(B)” which addresses crimes involving 50
grams or more of methamphetamine. Robinson’s Brief at 15.
The statutory sentence for this latter crime is five to forty
years.
Given the myriad admissions and acquiescence we have
recited above, one might wonder on what basis Robinson as‐
serts that he did not admit to a crime involving 500 grams or
more of methamphetamine under §841(b)(1)(A). For this as‐
sertion he points to two anomalies in the plea hearing. The
first is that later in the plea colloquy, Robinson asserted that
he personally only distributed a much smaller amount of meth‐
amphetamine. The second is that at the tail end of the plea
agreement, when asking for the plea, the judge did not refer‐
ence any subsection of 21 U.S.C. §841, but rather cited the U.S.
Code provision for conspiracy in general. We will begin our
analysis by discussing why Robinson’s assertions lack legal
relevance.
II.
A. Robinson’s arguments
1. Pinkerton liability
We begin with Robinson’s argument that he should only
be sentenced based on the quantity of methamphetamine he
delivered (or considered delivering) to Joshua Jacobs. As Rob‐
inson rightly points out, “[o]ther than the fact of a prior con‐
viction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). And so, Robinson argues,
if he only entered a plea to distributing methamphetamine
No. 19‐2441 9
without admitting to any drug amount, he could only be
guilty of, at most, the crime involving the smallest amount of
methamphetamine described in the statute—a crime involv‐
ing no more than 50 grams of methamphetamine as described
in §841(b)(1)(B). And therefore, he continues, the district court
could not sentence him as though he pled to a crime involving
500 grams or more of methamphetamine, as described in
§841(b)(1)(A). Of course, when a defendant admits to a drug
quantity that places him in a higher sentencing range, the sen‐
tence can be increased based on that admission without being
submitted to a jury. United States v. Warneke, 310 F.3d 542, 550
(7th Cir. 2002), as amended on denial of rehʹg and rehʹg en banc
(Jan. 10, 2003.). After all, “[a]n admission is even better than a
jury’s finding beyond a reasonable doubt; it removes all con‐
test from the case.” Id.We can dispose of this first argument quickly with the
Pinkerton theory of liability. “[I]n a drug conspiracy, each con‐
spirator is responsible not only for drug quantities directly at‐
tributable to him but also for amounts involved in transac‐
tions by co‐conspirators that were reasonably foreseeable to
him.” United States v. Jones, 900 F.3d 440, 446 (7th Cir. 2018)
(citing Pinkerton v. United States, 328 U.S. 640, 647–48 (1946)).
And there is no doubt that Robinson pled guilty to a conspir‐
acy, and that he agreed that the conspiracy involved 500
grams or more of methamphetamine. In addition to the tran‐
script cites above, Robinson admitted to all of the acts neces‐
sary for a conspiracy:
THE COURT: Conspiracy exists when you
agree with one or more other individuals to
commit an illegal act. The crime’s actually com‐
mitted when the agreement is made. It doesn’t
10 No. 19‐2441
necessarily have to be that the goals and objec‐
tives of the conspiracy are actually successful.
Do you understand this?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Did you agree with anyone in this
indictment to commit an illegal act?
THE DEFENDANT: Yes, Your Honor.
***
THE COURT: And what illegal act did you
agree to do with him?
THE DEFENDANT: To deal methampheta‐
mine.
(R. 161 at 8–9).
Robinson claims that the district court received “conflict‐
ing ‘admissions’” from him concerning drug quantity. Robin‐
son’s Reply Brief at 11. We see no conflict. Robinson admitted
to a conspiracy involving 500 grams or more of methampheta‐
mine. His only objection was to how much he personally dis‐
tributed—a number that is not relevant in sentencing under a
Pinkerton theory of liability where every co‐conspirator is re‐
sponsible not only for drug quantities directly attributable to
him, but also for amounts involved in transactions by co‐con‐
spirators that were reasonably foreseeable to him. Jones, 900
F.3d at 446.
Robinson points to two episodes in the testimony where
he objected to the drug amount, but both are objections to the
amount attributable to him personally, not to the amount at‐
tributable to the conspiracy. During the course of the plea col‐
loquy, the district court set forth the evidence at trial that
No. 19‐2441 11
would support a verdict of guilty, including that the defend‐
ant and co‐conspirators “obtained more than 1.5 kilograms [of
methamphetamine] for distribution.” (R. 161 at 21). After ask‐
ing whether Robinson agreed with the evidence, Robinson
stated, “No. I don’t agree with the fact of it being that much
that I was delivering. … ‘I only delivered —like I said, I only
delivered to [sic] those couple times to Joshua Jacobs.’” Id. at
22 (emphasis ours). Following that, the U.S. attorney stated
that three co‐conspirators named in the indictment had all
agreed to the 1.5 kilogram amount, and that “Joshua Jacobs
was sentenced and he explained in detail the numerous times
in which Mr. Robinson had given him drugs for redistribu‐
tion.” Id. The Defendant responded, “I heard that. I under‐
stand it but that’s not what I did.” Id. (emphasis ours). Robin‐
son’s objections to the amount he personally delivered, how‐
ever, have no relevance to the amount the conspiracy distrib‐
uted, which is the only relevant amount for sentencing pur‐
poses. In this way, Robinson’s claims are similar to the ones
in United States v. Savage where the defendant admitted that
he participated in the conspiracy and agreed to the amount of
drugs involved in the conspiracy, but wished to be sentenced
based only on the amount of drugs for which he was individ‐
ually responsible. United States v. Savage, 891 F.2d 145, 150–51
(7th Cir. 1989). We rejected this argument in Savage, and reject
it here as well.
2. The final plea statement
The second reason Robinson contends that he did not ad‐
mit to a conspiracy under §841(b)(1)(A) (involving 500 grams
or more of methamphetamine), points to the district court
judge’s shorthand language when accepting the plea. At the
end of the plea hearing, just before taking the plea, the judge
12 No. 19‐2441
shortened his description of the crime that had been set forth
in detail before:
THE COURT: As to the charge contained in the
indictment, conspiracy to distribute metham‐
phetamine, a violation of 21 U.S. Code Section
846, how do you plead, guilty or not guilty?
THE DEFENDANT: Guilty.
(R. 161 at 25). The statute the judge cited, 21 U.S.C. §846 states
in its entirety: “Any person who attempts or conspires to com‐
mit any offense defined in this subchapter shall be subject to
the same penalties as those prescribed for the offense, the
commission of which was the object of the attempt or conspir‐
acy.” 21 U.S.C.A. §846. This single shortened description of
the crime did not erase the fact that the indictment, to which
Robinson pled guilty, described a conspiracy under 21 U.S.C.
§841(b)(1)(A) involving 500 grams or more of methampheta‐
mine; throughout the course of the plea hearing the judge,
counsel, and the parties had repeatedly described a crime that
involved 500 grams or more of methamphetamine pursuant
to that section; and Robinson had agreed to those facts and his
participation in the conspiracy. Robinson agreed to his partic‐
ipation in this conspiracy involving 500 grams or more of
methamphetamine in the filings leading up to the plea agree‐
ments, in the plea agreement hearing, in the filings leading up
to the sentencing hearing and in the sentencing hearing itself.
The judge’s incomplete summary at the end of the hearing did
not change any of the earlier agreements and understandings.
B. Waiver or forfeiture
All of this is but another way of saying that Robinson
waived any argument as to drug quantity. An “admission[]
No. 19‐2441 13
resolve[s] all important matters against” a defendant, and “re‐
moves all contest from the case.” Warneke, 310 F.3d at 550.
When a defendant intentionally relinquishes a known right—
for example, when he states on the record that he has no ob‐
jection to the pre‐sentence report—he waives the right to ap‐
peal. United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000).
Robinson argues instead that his failure to raise the alleged
error at sentencing was not intentional, but neglectful and
thus he has forfeited and not waived the argument. See id. For‐
feited arguments are reviewed for plain error only. Id. The
lines between waiver and forfeiture are not always clear.
United States v. Garcia, 580 F.3d 528, 541 (7th Cir. 2009). In this
case, however, we find that Robinson’s conduct falls on the
side of waiver. But even had it not, his argument would still
fail on plain error review.
Although a guilty plea admits only the essential elements
of the offense, United States v. White, 883 F.3d 983, 989–90 (7th
Cir. 2018), “[a] defendant, of course, may admit far more than
the elements of a charged crime by stipulating to facts in a
plea agreement, by agreeing with the government’s factual
basis, or even by answering the judge’s questions during the
plea colloquy.” United States v. Paulette, 858 F.3d 1055, 1060
(7th Cir. 2017). Therefore, when a defendant stipulates to con‐
duct in a plea agreement, in a presentence report, and at his
sentencing hearing, he waives any claim that he did not en‐
gage in that conduct. United States v. Young, 908 F.3d 241, 247
(7th Cir. 2018); White, 883 F.3d at 990 (“A defendant may ad‐
mit more than just the essential elements of an offense by stip‐
ulating to facts in a plea agreement or by agreeing with the
government’s factual basis.”); United States v. Newman, 148
F.3d 871, 876 (7th Cir. 1998) (although defendant objected at
sentencing to conduct described in the presentence report and
14 No. 19‐2441
the resulting loss calculation, “by stipulating to the conduct
listed in [his] plea agreement, [the defendant] conclusively
admitted those facts and waived any subsequent challenge to
them.”).
Here, Robinson did just that. He admitted to his participa‐
tion in the conspiracy involving 500 grams or more of meth‐
amphetamine by stipulating to the facts in the plea agree‐
ment, by agreeing with the government’s factual basis, by
stipulating to conduct in the PSR, and by answering the
judge’s questions during the plea colloquy. At every step of
the way the district court asked Robinson if he agreed with
the facts as set forth in the indictment and the PSR, and every
step of the way he agreed. His only disagreement was about
his individual participation—facts that were not legally rele‐
vant to a determination of drug quantity in a conspiracy.
Robinson urges us not to look at the plea agreement and
colloquy, however, arguing that he is not appealing an error
that occurred at the plea hearing, but rather at sentencing. See
Robinson’s Reply. Brief at 1–2. He argues this because, of
course, he does not wish to rewind his plea and risk a worse
outcome after a trial. After all, all of his co‐conspirators pled
guilty and would be called to testify. Moreover, in exchange
for his guilty plea, the government had agreed not to request
a sentence increase based on prior felony convictions. Follow‐
ing a guilty verdict, the prior felony convictions would dictate
a fifteen‐year mandatory minimum.
Robinson describes the error below as follows: “the dis‐
trict court procedurally and plainly erred by beginning the
sentencing procedure with the incorrect advisory Guidelines
range because he pleaded guilty to an offense punishable un‐
der 28 [sic] U.S.C. §841(b)(1)(B) and not (b)(1)(A).” Robinson’s
No. 19‐2441 15
Reply Brief at 6. Put plainly, Robinson argues that the district
court applied the sentencing range for a conspiracy involving
500 grams of methamphetamine or more (a sentencing range
of 10 years to life), rather than a conspiracy involving 50
grams or more of methamphetamine (a sentencing range of 5‐
40 years). But there is no way to make this argument without
also arguing that at Robinson’s plea hearing he did not plead
guilty to a crime of 500 grams or more of methamphetamine
under §841(b)(1)(A). And with that, we have come full circle
to the hole in the bucket—it is clear that Robinson, at his plea
hearing, pled guilty to the crime of conspiracy to distribute
500 grams or more of methamphetamine.
But even if we looked only at alleged errors that occurred
at sentencing, it was also clear, at the time of sentencing, that
Robinson knew he was being sentenced for a crime involving
500 grams or more of methamphetamine under §841(b)(1)(A),
and waived any objection. As we described above, despite
raising two other objections to the PSR, Robinson never made
any objections to the drug quantity described in the PSR.
When asked whether he had any other objections, other than
the one for his leadership role and the other for criminal his‐
tory, the defendant himself stated that there were no other ob‐
jections and the PSR was “true and accurate.” (R. 158 at 3–4).
And after the district court judge began the sentencing pro‐
ceeding by stating that Robinson was before the court for sen‐
tencing “for the defendant’s plea to conspiracy to possess
with the intent to distribute and distribute 500 grams or more
of methamphetamine, a violation of 21 U.S.C. section
841(a)(1) and 846,” not only did Robinson fail to object, but
his counsel affirmatively agreed with that recitation of the rec‐
ord. Id. We have held before that where a defendant has ac‐
cess to the PSR, and knows of his right to object to it, objects
16 No. 19‐2441
to certain parts of the PSR, and then states on the record that
he does not have any others, “[t]his seems to us the paragon
of intentional relinquishment” that warrants a finding of
waiver. United States v. Brodie, 507 F.3d 527, 531 (7th Cir. 2007).
“Although a lawyer’s statement that a defendant has no
objection to the PSR does not automatically constitute a
waiver,” we consider it in light of the surrounding circum‐
stances and the record as a whole to determine whether coun‐
sel and the defendant made a knowing and intentional deci‐
sion. Garcia, 580 F.3d 542 (emphasis in original). In this case,
part of the surrounding circumstances would entail looking
at the sheer number of times and the multiple proceedings in
which Robinson and his counsel acquiesced or expressly
agreed to the statement that he participated in a conspiracy
involving 500 grams or more of methamphetamine—in plea
agreements signed by the defendant, in court during the plea
hearing, in objections to the PSR, and during the sentencing
hearing. In addition to the explicit waivers in sentencing, Rob‐
inson also did not object when the court stated that the “[c]on‐
spiracy was responsible for at least 1.5 but less than 4.5 kilo‐
grams of methamphetamine ice.” (R. 158 at 7). He did not ob‐
ject when the judge announced the sentence associated with
this amount of methamphetamine. (R. 158 at 8, 15); and he did
not object when the court ended the hearing by saying the
“[c]ourt now enters judgment of conviction on Count 1, con‐
spiracy to possess with the intent to distribute and distribute
500 grams or more of methamphetamine.” Id. at 57–58.
In looking at the circumstances as a whole, we also con‐
sider whether the lack of an objection could have been tactical
or strategic. United States v. Jaimes‐Jaimes, 406 F.3d 845, 848
(7th Cir. 2005). There is no “rigid rule for finding waiver in
No. 19‐2441 17
acquiescence.” United States v. Anderson, 604 F.3d 997, 1001
(7th Cir. 2010); and it is one that often requires some conjec‐
ture. Garcia, 580 F.3d at 542. We will find waiver “if the de‐
fendant had a strategic reason to forego the argument, that is,
only if the defendant’s counsel would not be deficient for fail‐
ing to raise the objection.” United States v. Allen, 529 F.3d 390,
395 (7th Cir. 2008). “If the government cannot proffer any stra‐
tegic justification for a defendant’s omission, we will presume
an inadvertent forfeiture rather than an intentional relin‐
quishment.” United States v. Moody, 915 F.3d 425, 429 (7th Cir.
2019).
The government argues that Robinson’s choice not to ob‐
ject below was tactical. As the government posits, had he ob‐
jected at the hearing or at the sentencing, the district court
would have held proceedings to set aside the guilty plea, and
would have set the matter for trial. And because all of the
other co‐conspirators had pled guilty and would be available
to testify against Robinson, the odds of his acquittal were
slim. Furthermore, he would have lost the three point reduc‐
tion in his sentence for acceptance of responsibility and ex‐
posed himself to a much higher sentence with his previous
felony convictions back on the table. Given the circumstances
as a whole—the number of times Robinson agreed to the facts,
the multiple proceedings in which he did so, and the fact that
there was a reasonable strategic reason for acquiescing, we
find that Robinson waived his argument that he did not plead
guilty to a conspiracy involving 500 grams or more of meth‐
amphetamine.
Although we construe waiver principles liberally in favor
of the defendant, United States v. Dridi, 952 F.3d 893, 898 (7th
Cir. 2020), we have time and again found waiver in just this
18 No. 19‐2441
circumstance—where a defendant or his counsel either con‐
curs with the facts found in a pre‐sentence report, or expressly
declines to make an objection to those facts at sentencing, or
both. United States v. Cooper, 243 F.3d 411, 416 (2001). See also,
United States v. Flores, 929 F.3d 443, 449 (7th Cir.), cert. denied,
140 S. Ct. 504 (2019) (finding waiver where the defendant
chose to raise certain sentencing objections, but not others);
United States v. Armour, 804 F.3d 859, 865 (7th Cir. 2015) (find‐
ing waiver where the defendant stated that he had reviewed
his violation memorandum with his lawyer, objected to two
limited parts of it, but not any others, and where the court as‐
sumed that his silence as to others was part of a tactical strat‐
egy); United States v. Scott, 657 F.3d 639, 640 (7th Cir. 2011)
(finding waiver where the defendant stipulated in his written
plea agreement to the facts, and concurred at sentencing that
the adjustment based on those facts applied); United States v.
Rodgers, 610 F.3d 975, 979 (7th Cir. 2010) (finding waiver
where the defendant filed no objections to the factual findings
in the PSR and when asked in court if he had any further ob‐
jection expressly stated that he did not); United States v. Ad‐
cock, 534 F.3d 635, 641 (7th Cir. 2008) (finding waiver where
counsel affirmatively stated that he has no objection to the
loss calculation in the PSR); Brodie, 507 F.3d at 531 (finding it
to be the “the paragon of intentional relinquishment,” where
a defendant had access to his PSR, objected to certain parts,
but then stated that he had no further objections to the re‐
mainder); United States v. Knox, 287 F.3d 667, 670 (7th Cir.
2002) (where the defendant and his lawyer informed the
judge that, with the exception of certain identified issues, they
had no problems with the conclusions of the presentence re‐
port, that representation waived any other theories related to
the sentence); United States v. Siegler, 272 F.3d 975, 978 (7th Cir.
No. 19‐2441 19
2001) (A defendant who stipulates to facts as part of a written
plea agreement waives challenges to the district court’s reli‐
ance on those facts.). Robinson waived any argument regard‐
ing the drug quantity established in the plea and sentencing
proceedings, and those admissions were sufficient to avoid
any problems posed by Apprendi, 530 U.S. at 490 or Alleyne v.
United States, 570 U.S. 99, 103 (2013).
Even if Robinson did not knowingly and intentionally
waive any objection to the drug quantity necessary for a con‐
viction under §841(b)(1)(A), his failure to object would have
constituted forfeiture. A defendant forfeits his rights to object
by failing to assert them in a timely manner due to neglect
rather than intent. Staples, 202 F.3d at 995. A right that has
been forfeited can only be reviewed for plain error. Id. In this
case there was no error at all. Robinson pled guilty a conspir‐
acy involving 500 grams or more of methamphetamine; the
district court accepted that plea and sentenced him accord‐
ingly. We find no error.
The judgment of the district court is therefore AFFIRMED.