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.
Kanne, Hamilton, and St. Eve, Circuit Judges.
HAMILTON, CIRCUIT JUDGE.
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.
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
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."
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.
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.
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."
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
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." ...