United States v. Rod Hunt
Opinion
While on supervised release for failing to register as a sex offender, Rod Hunt robbed a bank in Madison, Wisconsin. He pleaded guilty to bank robbery and brandishing a gun during a crime of violence.
I. Background
Hunt's supervised release began in 2016. He had pleaded guilty to failing to update his sex-offender registration.
The following year, Hunt was convicted of robbing a bank. During the robbery, he pointed a gun at people and threatened them verbally as well. He eventually pleaded guilty to the robbery,
At sentencing, Hunt asked the judge to recall his age (which was 56) and to give him a chance to be released before he dies. The judge gave Hunt a prison sentence totaling 154 months: 70 months for the robbery and 84 months for the § 924(c) gun charge, to be served consecutively. The new prison sentence will be followed by concurrent three-year terms of supervised release. The district court also revoked Hunt's supervised release (on the sex-offender registration crime) because Hunt committed another federal offense while on supervision. On that revocation, the judge sentenced him to 18 months in prison (to be served consecutively to the sentence for his new crimes) with no additional supervised release.
The new three-year term of supervised release on the bank robbery and firearm convictions came with conditions. The two that Hunt challenges on appeal also were among the conditions of his original term of release that the judge revoked. Critical to our waiver finding, before sentencing, Hunt received in the presentence investigation report all the proposed conditions of supervision. Then, both before and at sentencing, Hunt did not object to any of the proposed conditions, including the two that he now challenges. When the judge noted on the record that Hunt had not objected to any proposed condition of supervised release, Hunt did not disagree. Consistent with this on-the-record acquiescence, when the judge asked Hunt whether he wanted the judge to read the conditions for the record or to justify the conditions individually, Hunt told the judge that he need not do so. Finally, Hunt told the judge at the end of the hearing that there were no other issues to address.
The first challenged condition will prohibit Hunt from leaving "the judicial district in which defendant is being supervised without the permission of the Court or probation officer." The other will require: "As directed by the probation officer, defendant shall notify third parties of risks that may be occasioned by defendant's criminal record or personal history or characteristics. The probation officer may also take steps to confirm defendant's compliance with this notification requirement or provide such notifications directly to third parties." Hunt asks us to excuse his failure to object by finding that it was "plain error" to impose both conditions. The government responds that the first condition is error-free, and that on plain-error review this court should order the district court to clarify the condition requiring Hunt to "notify third parties of risks."
*924
At oral argument, we expressed concern that Hunt seemed to have waived challenges to both conditions of supervised release. Counsel replied that Hunt's failure to object to these conditions in the district court was a "miss" rather than an intentional waiver. Even if Hunt waived his challenges, counsel added, this case is similar to
United States v. Adkins
,
II. Analysis
We begin by reviewing the difference between waived arguments and forfeited arguments. Waiver precludes appellate review. See
United States v. Butler
,
Waiver occurs when a defendant intends (by words or actions) to relinquish a known right. See
United States v. Waldrip
,
In criminal cases, we ordinarily construe waiver principles liberally in favor of the defendant. See
Butler
,
In Flores , we recently tried to clarify our approach to waiver and forfeiture in our recent wave of appeals challenging supervised release conditions for the first time on appeal. We held:
We will find 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 justifications, challenges certain conditions but not the one(s) challenged on appeal, or otherwise evidences an intentional or strategic decision not to object.
Those conditions of waiver are all satisfied here. And in addition to the advance notice and all of the opportunities Hunt had to raise these issues, Hunt was already subject to the same conditions that he now wishes to challenge. He knew that they could be imposed and how they were enforced. Hunt also wanted to focus the sentencing decision on his arguments based on his age and his request to have a
*925
chance to be released before he dies. It can make strategic sense to focus arguments on such an important issue and not to risk distracting or perhaps even antagonizing the judge by nitpicking supervised release conditions. By choosing to pursue one argument and forgoing others, Hunt waived those other possible challenges. See
United States v. Kennedy
,
In
Flores
, we also noted that we retain the discretion in compelling cases to overlook a party's waiver of a challenge to a condition of supervised release, as with a wide range of other issues.
Even if we were to apply plain-error review to the conditions at issue here, we would not find plain error. We start with Hunt's objections to the condition preventing him from leaving the "judicial district." Hunt asserts that "judicial district" is vague, but that is not correct. Defendants can readily and "objectively verif[y]" the boundaries of judicial districts by, for example, consulting
That leaves the condition requiring Hunt to notify "third parties" of "risks" "occasioned by [his] criminal record or personal history or characteristics." We assume that the condition would benefit from further definition. See
United States v. Canfield
,
We AFFIRM the judgment in appeal No. 18-1198. We DISMISS appeal No. 18-1197.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Rod HUNT, Defendant-Appellant.
- Cited By
- 14 cases
- Status
- Published