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United States v. Hunt

United States Court of Appeals, Seventh Circuit

July 23, 2019

United States of America, Plaintiff-Appellee,
v.
Rod Hunt, Defendant-Appellant.

          Argued April 24, 2019

          Appeals from the United States District Court for the Western District of Wisconsin. Nos. 0758 3:15CR00079-001 & 0758 3:17CR00046-001 William M. Conley, Judge.

          Before Kanne, Hamilton, and St. Eve, Circuit Judges.

          HAMILTON, CIRCUIT JUDGE.

         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. 18 U.S.C. §§ 2113(a), 924(c). The district judge revoked his term of supervised release and sentenced him to 172 months in prison followed by three years of supervised release for the new crimes. Hunt has appealed both the revocation (No. 18-1197) and the new sentence (No. 18-1198), and we have consolidated the appeals. His brief on appeal challenges only two conditions of his new term of supervised release. We affirm on those points in No. 18-1198 because in the district court Hunt waived those two challenges. His brief says nothing about the revocation of his earlier term of supervised release, and at oral argument counsel told us that Hunt has no quarrel with the revocation itself. We therefore dismiss No. 18-1197.

         I. Background

         Hunt's supervised release began in 2016. He had pleaded guilty to failing to update his sex-offender registration. 18 U.S.C. § 2250. His sentence was 30 days in prison and five years of supervised release. As part of his supervised release, Hunt was prohibited from committing another federal crime.

         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, 18 U.S.C. § 2113(a), and to brandishing a firearm during a crime of violence, § 924(c). He told the judge that, because of his medical problems, the robbery had been an attempt to commit "suicide by cop."

         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."

         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, 743 F.3d 176 (7th Cir. 2014), where we invalidated a condition of supervised release that was unconstitutionally vague despite the defendant's written appeal waiver.

         II. Analysis

         We begin by reviewing the difference between waived arguments and forfeited arguments. Waiver precludes appellate review. See United States v. Butler, 777 F.3d 382, 386-87 (7th Cir. 2015). Forfeited arguments may be reviewed for "plain error." ...


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