In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 23-2883 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

EDWARD GIBBS, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 3:18-cr-00047 — Richard L. Young, Judge. ____________________

ARGUED OCTOBER 24, 2024 — DECIDED MARCH 10, 2025 ____________________

Before EASTERBROOK, KIRSCH, and PRYOR, Circuit Judges. PRYOR, Circuit Judge. Edward Gibbs pleaded guilty to con- spiracy to obtain and distribute methamphetamine. The dis- trict court sentenced Gibbs to 180 months of imprisonment and 5 years of supervised release. On appeal, Gibbs argues— for the first time—that two conditions of his supervised re- lease are unconstitutionally vague and overbroad. Because Gibbs waived this objection at sentencing, we AFFIRM. 2 No. 23-2883

I. BACKGROUND In August 2018, a grand jury returned a one-count indict- ment charging Gibbs with conspiracy to possess with the in- tent to distribute and to distribute 500 grams or more of meth- amphetamine mixture, in violation of 21 U.S.C. §§ 841(a)(1) and 846. In November 2020, Gibbs pleaded guilty to that charge and was sentenced to a term of 200 months of impris- onment and 5 years of supervised release. Gibbs appealed the sentence, and we remanded for resentencing based on a sen- tencing error. United States v. Gibbs, 26 F.4th 760 (7th Cir. 2022). Before resentencing, the United States Probation Office prepared a revised Presentence Investigation Report (PSR) recommending twenty-one conditions of supervised release, including conditions “m” and “r.” Condition “m” provides: As directed by the probation officer, you shall notify third parties who may be impacted by the nature of the conduct underlying your current or prior offense(s) of conviction and/or shall permit the probation officer to make such noti- fications and/or confirm your compliance with this requirement. Condition “r” provides: You shall not knowingly purchase, possess, dis- tribute, administer, or otherwise use any psy- choactive substances (e.g., synthetic marijuana, bath salts, Spice, glue, etc.) that impair a per- son’s physical or mental functioning, whether or not intended for human consumption. No. 23-2883 3

At Gibbs’s resentencing hearing, the district judge dis- cussed with Gibbs his terms of supervised release. Towards the end of the hearing, the judge stated: [t]o promote respect for the law, prevent recidi- vism and aid in the adequate supervision De- fendant shall also comply with the following conditions of supervision as referenced in the Presentence Report. And, Mr. Gibbs, you’ll re- call when we reviewed your report, I asked if you’d been able to read and discuss with your attorney the mandatory and proposed condi- tions of supervision. Gibbs responded with an affirmative “[y]es, sir.” The district judge also confirmed that Gibbs did not have any objections to those conditions and asked Gibbs if he wished to waive any formal reading of them. Gibbs responded, “Let’s waive it, Your Honor.” The district court recognized Gibbs’s waiver and confirmed with Gibbs that he had discussed these condi- tions with his attorney, which Gibbs responded, “[y]es sir.” The district court entered an amended final judgment on Sep- tember 1, 2023. II. ANALYSIS Gibbs challenges, for the first time on appeal, the quoted supervised release conditions as impermissibly vague and overbroad. Acknowledging this misstep, Gibbs argues that his conduct was not intentional, and we should therefore re- view his appeal for plain error. “The first step in plain[]error review, as the Supreme Court has repeatedly said, is to ask whether the defendant in- tentionally relinquished the challenge [he] now presents.” 4 No. 23-2883

United States v. Flores, 929 F.3d 443, 444 (7th Cir. 2019). If the answer is yes, appellate review is precluded. Id. at 447. Unraised arguments in the district court are characterized as either waived or forfeited. In the context of sentencing, we find “[w]aiver occurs when a party intentionally relinquishes a known right[,] and forfeiture arises when a party inadvert- ently fails to raise an argument in the district court.” United States v. Canfield, 2 F.4th 622, 627 (7th Cir. 2021) (internal cita- tions omitted). “We review forfeited arguments for plain er- ror, whereas waiver extinguishes error and precludes appel- late review.” Flores, 929 F.3d at 447 (citing United States v. Olano, 507 U.S. 725, 733 (1993)). Whether an argument is waived requires us to review the record to determine whether the defendant’s decision not to object or raise an argument was knowing and intentional. United States v. Sutton, 127 F.4th 1067, 1072 (7th Cir. 2025). Here, Gibbs contends that his attorney’s failure to object to the supervised release conditions was neither an inten- tional nor strategic decision. In the context of supervised re- lease conditions, we hold that a defendant waives his objec- tion “when the defendant has notice of the proposed condi- tions, 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, challenges certain conditions but not the one(s) challenged on appeal, or otherwise evidences an inten- tional or strategic decision not to object.” Flores, 929 F.3d at 450. Based on the record, we see clear evidence that Gibbs made an intentional and informed decision not to object to the proposed supervised release conditions that he now No. 23-2883 5

challenges on appeal, despite having a meaningful oppor- tunity to do so. Flores, 929 F.3d at 449. Gibbs had advance no- tice of the proposed supervised release conditions in the re- vised PSR. At the resentencing hearing, Gibbs confirmed with the district judge that he had reviewed the proposed condi- tions of supervision with his attorney and had no objection. Gibbs also waived a formal reading of the supervised release conditions. These circumstances tend to demonstrate an af- firmative waiver, not an oversight. Id. at 450. Still, Gibbs argues that he forfeited rather than waived his challenges to the supervised release conditions because he did not make any objections at all to the conditions of super- vised release, showing that he had nothing to gain from not objecting. This argument, however, ignores Gibbs’s affirma- tive conduct at the resentencing hearing. By expressly ac- knowledging that he had reviewed the proposed conditions with counsel and representing that he had no objections, Gibbs knowingly and intentionally waived any challenges to the supervised release conditions. United States v. St. Clair, 926 F.3d 386, 388 (7th Cir. 2019) (citing United States v. Gabriel, 831 F.3d 811, 814 (7th Cir. 2016) (defendant waived objections to supervised release conditions where, after receiving advance notice of proposed conditions, defense said it had no objec- tions to conditions)). This waiver precludes our appellate re- view, and we do not reach the merits of Gibbs’s appeal. We remind Gibbs, however, that if he believes his super- vised release conditions are too ambiguous or overly encom- passing, there is another avenue he can pursue. Title 18 U.S.C. § 3583(e)(2) allows Gibbs to petition the district court for a modification of his imposed conditions of supervised release before the expiration or termination of his supervised 6 No. 23-2883

released term. Flores, 929 F.3d at 451; St. Clair, 926 F.3d at 389; United States v. Johnson, 765 F.3d 702, 711 (7th Cir. 2014) (the district court retains the ability to modify a defendant’s con- ditions of supervised release at any time after his sentencing hearing). III. CONCLUSION Because Gibbs intentionally chose not to challenge the su- pervised release conditions below, waiver precludes our re- view. For these reasons, we AFFIRM the judgment of the dis- trict court.