United States v. Canfield

2 F.4th 622

UNITED STATES of America, Plaintiff-Appellee,

v.Joseph CANFIELD, Defendant-Appellant.

No. 20-3145

United States Court of Appeals, Seventh Circuit.

Argued March 31, 2021

Decided June 21, 2021

Jeffrey Kienstra, Attorney, Office of the United States Attorney, Peoria, IL, for Plaintiff-Appellee.

Peter W. Henderson, Elisabeth R. Pollock, Attorneys, Office of the Federal Public Defender, Urbana, IL, for Defendant-Appellant.

Before Sykes, Chief Judge, and Flaum and Easterbrook, Circuit Judges.

Flaum, Circuit Judge.

Defendant-appellant Joseph Canfield was sentenced to prison and supervised release for possessing child pornography. In a subsequent proceeding for revocation of his supervised release, the district court sentenced Canfield to twenty months’ imprisonment and an additional five years’ supervised release, a term of supervised release which all parties referred to as "mandatory." In this appeal, Canfield challenges the application of the additional five-year term as not actually mandatory but instead the result of a mutual mistake.

Going no further than our threshold waiver inquiry, we now affirm the judgment of the district court. Canfield had ample advance notice of the terms of his supervised release, was given a meaningful opportunity to object, indeed advanced several objections to those terms, and went so far as to affirmatively advance the argument he now challenges on appeal. Those actions amount to waiver.

I. Background

In January 2008, the district court sentenced Canfield to seventy-eight months’ imprisonment and three years’ supervised release for knowingly possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). After his release from custody, Canfield commenced supervision in June 2013, subject to a series of special conditions.

Canfield's first several years of supervision went without incident. The district court modified conditions of Canfield's supervised release in May 2016, however, to extend supervised release for an additional one-year period to allow for him to meet treatment goals and successfully complete sex offender counseling. In response to the probation office's concern about Canfield's "high risk behavior in violation of his conditions of supervision," the district court again modified conditions of his supervised release in October 2016, extending supervision for an additional one-year period and requiring 180 days of home confinement. Specifically, Canfield had purchased an unreported smartphone with unfiltered internet access and used it to view adult pornography and also used his mother's smartphone, without her permission, to view adult pornography. Moreover, a police search of his residence found two DVDs containing adult pornography, which Canfield admitted to purchasing.

A. First Revocation

The district court subsequently revoked Canfield's supervised release several times. First, in March 2017, the probation office filed a petition to revoke Canfield's supervised release. The petition cited Canfield's failure to participate in sex offender treatment ("unsuccessful[ ] discharge[ ] from sex offender treatment services ... for failing to follow the treatment program rules and noncompliance with his treatment plan") and unauthorized contact with a person under the age of eighteen ("unsupervised contact with a 9 month old female infant") as grounds for supervision revocation. Following a hearing on the petition in May 2017, the district court revoked Canfield's supervised release and imposed a new sentence of six months’ imprisonment and five additional years’ supervised release. In the record of Canfield's supervised release revocation and sentencing proceedings, the district judge noted that "[t]he supervised release period would be not less than five years up to life minus any term of imprisonment imposed upon revocation."

Following an appeal,¹ the district court entered an amended revocation judgment in November 2018. The district court entered other uncontested modifications to Canfield's supervised release between December 2018 and September 2019.

B. Second Revocation

At the end of December 2019, the probation office filed a second petition to revoke Canfield's supervised release. The petition cited Canfield's failure to participate in sex offender treatment on account of "numerous treatment contract violations and excessive absences" and "possession of an unreported internet capable cell phone ... with no filtering software installed." The probation office filed a supplemental petition in February 2020, noting Canfield's unsuccessful discharge from substance abuse treatment for "consistently making inappropriate comments in treatment ... and for being consistently late or missing scheduled counseling groups." Canfield was taken into custody and detained in March 2020. In June 2020, the parties agreed to a modification of the terms of supervision, and the district court entered a corresponding order directing Canfield to serve ninety days at the Ford County Jail with credit for time served and ninety days in home confinement. As a result, the district court granted the government's motion to withdraw the petition to revoke supervised release.

C. Third Revocation

In July 2020, the probation office filed a third petition to revoke Canfield's supervised release, alleging that he had unauthorized contact with a person under the age of eighteen. Two minor females, both age sixteen, reported living at Canfield's apartment for four to five days. After Canfield was charged in state court with violations of Illinois sex-offender laws for failure to register within three days after beginning to reside in a household with a child under eighteen years of age who is not his own child, the probation office amended this petition to revoke supervised release to include a violation of his supervision condition requiring that he not commit another federal, state, or local crime. A magistrate judge ordered Canfield detained pending the violation hearing.

Prior to the hearing, defense counsel noted that Canfield's anticipated penalties under the U.S. Sentencing Guidelines would include "3 to 9 months imprisonment, plus five additional years of supervised release." Relevant to this appeal, the violation memorandum, filed by the probation office four weeks before the revocation hearing, stated under "Statutory Supervised Release Provisions" that the applicable sentencing options were "[n]ot less than 5 years to life" and specifically referenced 18 U.S.C. § 3583(k).

At the beginning of Canfield's revocation hearing, his attorney noted that she had reviewed the petitions and violation memorandum with Canfield. Before accepting Canfield's guilty plea, the court recited the applicable penalties. Canfield himself confirmed he had reviewed the report and, when given the opportunity by the court, challenged only an inaccuracy that his counsel characterized as "irrelevant." Counsel made clear in this hearing that Canfield's priority was to "get ... done with supervised release to the best of our ability."

In response to his guilty plea, the district court revoked Canfield's supervised release and sentenced him to twenty months’ imprisonment and an additional five years’ supervised release. Prior to imposing the sentence, the district court adopted the recommended sentencing ranges for imprisonment and supervised release as summarized in the violation memorandum, which included a "minimum" supervised release term of five years. Although Canfield's counsel objected to one proposed supervision condition, she made no objections to the sentencing range, which encompassed a minimum supervised release term of five years. Indeed, both government and defense counsel referred to the five-year supervised release term as "mandatory." Canfield waived a reading of the conditions of supervision. The district court entered a final judgment on October 23, 2020.

Canfield now appeals.

II. Discussion

Canfield contends the district court plainly erred in sentencing him to a five-year term of supervised release, raising for the first time on appeal the argument that this sentence was not actually mandatory under 18 U.S.C. § 3583(k). As relevant here, two statutory provisions govern the inclusion of a term of supervised release after a defendant's imprisonment: 18 U.S.C. § 3583(h), directed at supervised release following revocation, and § 3583(k), directed in part at the authorized term of supervised release for offenses under 18 U.S.C. § 2252A. The crux of Canfield's argument is that the five-year mandatory minimum found in § 3583(k) ’s first clause is relevant only at an initial sentencing hearing, while § 3583(h), which mentions no mandatory minimum, governs this imposition of a supervised release term following revocation.

Although we generally review statutory interpretation questions de novo, see United States v. Shaw , 957 F.3d 734, 738 (7th Cir. 2020), a challenge not raised before the district court is, at best, reviewed for plain error, see United States v. Flores , 929 F.3d 443, 447 (7th Cir.), cert. denied , ––– U.S. ––––, 140 S. Ct. 504, 205 L.Ed.2d 327 (2019). "The first step in plain-error review, as the Supreme Court has repeatedly said, is to ask whether the defendant intentionally relinquished the challenge [he] now presents." Id. at 445 (citing cases). If yes, appellate review is precluded. See id. at 447.

We begin and end our inquiry at this first step of plain-error review. That "the failure to make timely assertion of ... right[s] before a tribunal having jurisdiction to determine [them]" may limit appellate consideration is a procedural principle quite familiar to courts. United States v. Olano , 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Yakus v. United States , 321 U.S. 414, 444, 64 S.Ct. 660, 88 L.Ed. 834 (1944) ). We categorize unraised arguments as either waived or forfeited. In the context of sentencing, "[w]aiver occurs when a party intentionally...