United States v. David Barnes , 883 F.3d 955 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-2574
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID N. BARNES,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 4:09-cr-40069-NJR-1 — Nancy J. Rosenstengel, Judge.
____________________
ARGUED JANUARY 17, 2018 — DECIDED MARCH 1, 2018
____________________
Before FLAUM, EASTERBROOK, and BARRETT, Circuit Judges.
BARRETT, Circuit Judge. David Barnes appeals his sen-
tence. He argues that the district court incorrectly calculated
his Guidelines range by counting a local ordinance violation
for “Smoking Marihuana at a Public Park” in his criminal
history score. Because Barnes has waived this argument, we
affirm the district court.
2 No. 17-2574
I.
In 2010, Barnes pleaded guilty to several offenses related
to the distribution of crack cocaine. The district court sen-
tenced him to 300 months of imprisonment, five years of su-
pervised release, a fine of $600, and a special assessment of
$300. Barnes did not appeal. 1 In 2012, Barnes moved under
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence
on the ground that two Illinois convictions used to classify
Barnes as a career offender—one for robbery and the other
for aggravated discharge of a firearm—were no longer valid
predicates. After he received his federal sentence, Barnes
persuaded an Illinois state court to convert these convictions
from adult felony convictions to adjudications of delinquen-
cy. (Barnes was fifteen when he committed these crimes but
was tried as an adult.) Now that they were juvenile offenses,
Barnes claimed, they no longer justified the enhancement he
had received under the Sentencing Guidelines for being a
career offender.
The district court granted his § 2255 motion and ordered
that a revised presentence investigation report (PSR) be pre-
pared for resentencing. The revised PSR did not use the ad-
judications of delinquency to classify Barnes as a career of-
fender. It did, however, count them in his criminal history
score. The PSR assigned Barnes ten criminal history points:
two for the adjudication of delinquency for robbery, two for
the adjudication of delinquency for aggravated discharge of
1 While Barnes did not appeal, he did make a successful post-
judgment motion in 2015 to reduce his sentence in accord with a retroac-
tively applicable amendment to the Guidelines. His revised sentence was
269 months.
No. 17-2574 3
a firearm, one point apiece for three convictions of marijuana
possession, one point for smoking marijuana at a public
park, and two points for committing the instant offense
while on the parole imposed as part of his sentence for the
convictions now classified as adjudications of delinquency.
Defense counsel and the government went back and
forth about Barnes’s criminal history score. Barnes’s counsel
maintained that the PSR should give no weight to either the
juvenile adjudications or the parole violation based upon
them. Instead, he insisted, the court should assign him only
four points in determining his criminal history category, one
for each of the marijuana-related offenses. The government
initially opposed any modification to the PSR on the ground
that the Guidelines expressly count juvenile offenses as rele-
vant criminal history. But after Barnes’s counsel shifted his
argument to highlight a procedural irregularity in the state-
court judgment, the government agreed that the district
court should not assess any criminal history points for the
juvenile offenses or the associated parole violation. 2 The PSR
was revised, and the district court sentenced Barnes to 189
months of imprisonment, five years of supervised release, a
$600 fine, and a $300 special assessment.
2 The state court did not impose any juvenile sentence after it voided
Barnes’s adult convictions and adjudicated him delinquent on those
charges. At that point, Barnes had already served the sentence for the
adult conviction and been discharged from parole, so the case was in an
awkward procedural posture. With no sentence imposed for the valid
adjudications of delinquency, as opposed to the now-void adult convic-
tions, the government thought it would be prudent for the court to forgo
assessing any criminal history points for those offenses or the associated
parole violation.
4 No. 17-2574
Barnes appeals this sentence. He claims that the district
court incorrectly counted a local ordinance violation—one
for “Smoking Marihuana at a Public Park”—as part of his
criminal history. Local ordinance violations do not count to-
ward criminal history unless the underlying conduct would
also violate state law. See U.S.S.G. § 4A1.2(c)(2). Barnes says
that there is no Illinois crime of “Smoking Marihuana at a
Public Park” and that assigning him a criminal history point
for that offense was therefore error.
II.
The parties agree that Barnes failed to raise this objection
below. But they disagree about whether Barnes has waived
or forfeited the argument. “Waiver occurs when a defendant
intentionally relinquishes a known right.” United States v.
Haddad, 462 F.3d 783, 793 (7th Cir. 2006). Forfeiture, by con-
trast, “occurs when a defendant accidentally or negligently
fails to assert his or her rights in a timely fashion.” Id. The
difference between the two is significant, because “[w]aiver
of a right extinguishes any error and precludes appellate re-
view, whereas forfeiture of a right is reviewed for plain er-
ror.” United States v. Brodie, 507 F.3d 527, 530 (7th Cir. 2007).
Barnes claims that his failure to object to the inclusion of the
“Smoking Marihuana at a Public Park” offense in his crimi-
nal history score was an oversight that we can remedy if the
district court clearly erred. The government asserts that
Barnes knowingly conceded this point below and is now
barred from pressing it on appeal.
Because the waiver principle is construed liberally in fa-
vor of the defendant, we are cautious about interpreting a
defendant’s behavior as intentional relinquishment. Thus we
have held that a defendant does not necessarily waive a sen-
No. 17-2574 5
tencing argument by accepting the PSR without objection,
see United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir.
2005), or even by contesting some aspects of the PSR and not
others, see United States v. Jenkins, 772 F.3d 1092, 1095–96 (7th
Cir. 2014). At the same time, a more targeted strategy raises a
different inference. In United States v. Walton, 255 F.3d 437,
442 (7th Cir. 2001), we concluded that the defendant waived
any objection to a particular sentencing enhancement when
his counsel “affirmatively indicated” that the argument he
made “was the sole objection that he was raising regarding
the application of the enhancement.” We said that by making
that representation, he “affirmatively abandoned all other
arguments against the application of the enhancement in his
case.” Id. at 443.
Barnes had a targeted strategy. He focused exclusively on
his criminal history category and raised a single objection to
it: he argued that his adjudications of delinquency and asso-
ciated parole violation should be excluded. And in the
course of making this argument, he did not simply fail to ob-
ject to the inclusion of the remaining marijuana offenses. On
at least four occasions, Barnes’s counsel told the district court
that it should give Barnes one point for each of the marijua-
na offenses, including the “Smoking Marihuana at a Public
Park” violation, for a total of four points. In two different
motions objecting to his revised PSR, he asked the court to
find that Barnes had “4 [criminal history] points for a Crimi-
nal History Category III.” At an initial hearing, defense
counsel insisted that the correct calculation—one counting
the marijuana offenses but not the juvenile adjudications and
associated parole violation—would give Barnes “a total of
four points, four criminal history points.” At Barnes’s resen-
tencing, the court asked defense counsel if he had any objec-
6 No. 17-2574
tions to “a total offense level of 33, with a criminal history
category of III consisting of four criminal history points.”
Defense counsel said no. After the court invited the defense
to give a sentencing recommendation and supporting argu-
ment, counsel stressed, in arguing for leniency, that “with
the revised criminal history, [Barnes] has four criminal histo-
ry points. Each one was for a marijuana ticket. That’s all the
criminal history you have.” Having specifically and repeat-
edly told the district court that it was appropriate to assign
him a criminal history point for each of the marijuana of-
fenses, Barnes cannot now complain that the court erred by
agreeing with him.
We typically treat the failure to object as forfeiture when
“finding waiver from an ambiguous record would compel
the conclusion that counsel necessarily would have been de-
ficient to advise the defendant not to object.” Jaimes-Jaimes,
406 F.3d at 848. That is not the situation here. Barnes unam-
biguously sought this criminal history score, and defense
counsel’s failure to challenge the inclusion of the “Smoking
Marihuana at a Public Park” violation was hardly deficient.
On the contrary, it was good lawyering. While Illinois may
not have a crime called “Smoking Marihuana at a Public
Park,” the name of the crime does not drive the analysis. If
the conduct prohibited by local ordinance would also violate
state law, the offense is “treated as if the defendant had been
convicted under state law” for purposes of computing crim-
inal history. U.S.S.G. § 4A1.2(c)(2), cmt. n.12; see also United
States v. Milquette, 214 F.3d 859, 863 (7th Cir. 2000) (pointing
out that the guideline “actually requires courts to include
ordinance violations that are also criminal offenses under
state law”). Barnes was convicted of this ordinance violation
“after he was seen smoking marihuana at a park and refused
No. 17-2574 7
to pick it up when asked to by the police officer.” PSR ¶ 90.
Possession of marijuana was a crime under Illinois law at the
time of Barnes’s ordinance violation. See 720 ILCS 550/4
(2009). As we have observed in the past, “Inferring posses-
sion of a drug from the consumption of that drug is just as
sensible as inferring, from the statement ‘I ate a hamburger
for lunch,’ that the person possessed the hamburger before
wolfing it down.” United States v. Trotter, 270 F.3d 1150, 1153
(7th Cir. 2001). We are reluctant to find waiver when an ob-
jection is strong, because it is difficult to believe that a de-
fendant would knowingly leave a compelling argument on
the table. See Jenkins, 772 F.3d at 1096. It is evident why de-
fense counsel refrained from making this one.
The district court’s judgment is AFFIRMED.