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United States v. Hathaway

United States Court of Appeals, Seventh Circuit

February 12, 2018

United States of America, Plaintiff-Appellee,
Ralph D. Hathaway, Defendant-Appellant.

          Argued January 8, 2018

         Appeal from the United States District Court for the Central District of Illinois. No. 15-CR-30035 - Richard Mills, Judge.

          Before Easterbrook and Sykes, Circuit Judges, and Bucklo, District Judge [*]

          Bucklo, District Judge.

         Ralph Hathaway was convicted after a jury trial of knowingly transporting a minor across state lines to engage in criminal sexual activity and of traveling between states to do the same. See 18 U.S.C. § 2423(a), (b). At sentencing, the district court ordered Hathaway to pay restitution to his victim; Hathaway objected to part, but not all, of the restitution order. On appeal, Hathaway challenges the portions of the restitution order that he declined to contest in the district court. Because Hathaway waived his right to assert further objections to the restitution order, we affirm.

         In early 2013, when Hathaway was 44 years old, he began exchanging online messages with a 13-year-old girl, "L.H." After pursuing L.H. online via video chats and social media accounts for a few months, Hathaway proposed that the two meet in person. Soon thereafter, he drove from Illinois to L.H.'s home in South Carolina, where he convinced L.H. to engage in sexual activity with him. In the year that followed, Hathaway made several more trips to South Carolina to continue the sexual relationship.

         In June 2015, Hathaway again traveled to South Carolina, this time to pick L.H. up in the middle of the night and drive her to his home in Illinois. Law enforcement found L.H. there the next evening and took her into protective custody. Agents also brought Hathaway in for questioning but released him later that night. After the authorities intervened, L.H.'s father gave them permission to send L.H. to California to live temporarily with her uncle, in part to keep her away from Hathaway, who had not yet been arrested. While L.H. was in California, her father traveled to Illinois to collect her belongings from the sheriff's department.

         Hathaway was eventually arrested and charged with one count of transporting a minor with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a) and two counts of traveling between states for the purpose of engaging in illicit sexual conduct in violation of 18 U.S.C. § 2423(b). After a four-day trial, a jury found him guilty on all three counts.

         The probation office's presentence investigative report (PSR) calculated Hathaway's offense level at 41 with a criminal history category of I, which meant that his sentencing guidelines range for the § 2423(a) conviction was 324 to 405 months of imprisonment. The PSR also recommended that Hathaway pay $4, 489 in restitution to his victim and her family, including $1, 089 for L.H.'s counseling expenses, $3, 100 for costs incurred in relocating L.H. to California after law enforcement found her at Hathaway's home, and $300 for the costs of retrieving L.H.'s belongings from Illinois.

         At his sentencing hearing, Hathaway raised six objections to the PSR, one of which concerned restitution. Specifically, Hathaway opposed the inclusion of the victim's counseling expenses in the restitution calculation. Before addressing the objections, the court advised Hathaway of his right to present additional pro se objections, and the court asked both Hathaway and his attorney whether there were other issues they wished to contest. Hathaway told the court that his attorney had already presented all of his objections in the paperwork filed with the court, and Hathaway's attorney confirmed that he had no further objections to add.

         The district court denied Hathaway's objection to the restitution calculation, concluding that the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, required Hathaway to pay for his victim's counseling and psychological care. Thus, in addition to imposing a 400-month prison term and five years of supervised release, the district court ordered Hathaway to pay all $4, 489 of the proposed restitu- tion, including the counseling expenses and the remaining $3, 400 in uncontested costs.

         On appeal, Hathaway contends that the district court erred by including the relocation expenses in the restitution calculation because, in his view, they were not directly related to his criminal conduct. He also argues that the court should not have included the retrieval expenses because they were not properly supported in the record. In response, the government asserts that Hathaway waived these late objections by declining to raise them at his sentencing hearing and by strategically asserting other objections instead.

         A criminal defendant hoping to preserve an issue for appeal must make a "timely and specific objection" in the district court. United States v. Burns, 843 F.3d 679, 685 (7th Cir. 2016). There is no dispute that Hathaway failed to object to paying L.H.'s relocation and retrieval expenses at sentencing, so we must determine whether Hathaway waived or merely forfeited the objections he now pursues on appeal. Id.

         "Waiver is the intentional relinquishment of a known right." United States v. Waldrip,859 F.3d 446, 449 (7th Cir. 2017) (quoting Burns, 843 F.3d at 685). Forfeiture, on the other hand, is the accidental or neglectful failure to timely assert a right. Id. at 450. The distinction between waiver and forfeiture is an important one. See United States v. Butler, 777 F.3d 382, 386-87 (7th Cir. 2015). While waiver "precludes appellate review by extinguishing any error that occurred, " ...

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