Sentencing – Supervised Release

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7^th Circuit Court of Appeals

Case Name: United States of America v. Valerie Flores

Case No.: 18-3249

Officials: HAMILTON, SCUDDER, and ST. EVE, Circuit Judges.

Focus: Sentencing – Supervised Release

In this appeal, Valerie Flores challenges one condition of her supervised release as unconstitutionally vague. She admits that she did not raise the challenge in the district court, but she asks that we review it for plain error. The first step in plain‐error review, as the Supreme Court has repeatedly said, is to ask whether the defendant intentionally relinquished the challenge she now presents. See Rosales‐Mireles v. United States, 138 S. Ct. 1897, 1904–05 (2018); Molina‐Martinez v. United States, 136 S. Ct. 1338, 1343 (2016); United States v. Olano, 507 U.S. 725, 733 (1993). This is where Flores’s challenge fails. She had notice and opportunity to make the challenge in the district court, she submitted other sentencing challenges, and she affirmatively waived reading of the conditions and their justifications at sentencing. Her failure amounts to waiver, precluding appellate review.

We recognize, and will address, that in some cases we have overlooked waiver concerns when reviewing supervised release conditions for plain error. Those cases either presented compelling reasons for forgiving waiver, which this case does not present, or simply did not address waiver, usually because the government did not press it. We emphasize, as the Supreme Court has, that waiver is a threshold, context‐specific inquiry in plain‐error review. Due to Flores’s waiver, we affirm.

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.