United States v. Andrew Modjewski , 783 F.3d 645 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3012
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREW MODJEWSKI,
Defendant-Appellant.
___________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10-cr-654 — Virginia M. Kendall, Judge.
____________________
ARGUED MAY 19, 2014 — DECIDED APRIL 13, 2015
____________________
Before ROVNER, WILLIAMS, and TINDER, Circuit Judges.
PER CURIAM. Andrew Modjewski presented the testimo-
ny of a psychiatric expert during his sentencing hearing in
hopes that it would reduce his sentence for possession and
delivery of an extremely large amount of child pornography.
At the sentencing hearing, after the defense conducted its
direct examination and the government cross-examined the
expert, the district court judge engaged in lengthy and direct
2 No. 13-3012
questioning of the expert, much of it regarding whether
Modjewski could be classified as having a pedophilic identi-
fication. Though the expert said Modjewski could not, the
judge came to her own contrary conclusion based on her
knowledge of the field. Modjewski now argues the judge
should have sua sponte recused herself. We reject Modjew-
ski’s argument that the judge’s questioning rose to the level
of personal bias since she was testing the reliability of the
expert’s opinion. We also find neither the judge’s general
knowledge of the relevant field nor her determination that
Modjewski was more accurately classified having a pe-
dophilic identification constituted personal knowledge of a
disputed evidentiary fact, since neither was a fact. Further,
we find that Modjewski waived his right to challenge the
district court’s purported failure to address the arguments in
mitigation raised in the appeal. We therefore affirm
Modjewski’s sentence.
I. BACKGROUND
Modjewski pled guilty to three counts of possession and
transportation of electronic child pornography. His collec-
tion was massive, consisting of over 12,500 images and 700
videos. One analyst from the National Center for Missing &
Exploited Children called it the “most complete collection”
of child pornography she had investigated.
At sentencing, Modjewski presented the expert testimony
of Dr. Lisa Rone, an Assistant Professor of Clinical Psychia-
try at Northwestern University, Feinberg School of Medicine.
Dr. Rone reiterated the findings in her report that Modjewski
suffered from post-traumatic stress and bipolar disorders.
She testified that he had minimal risk factors for re-
offending since he did not have a personality or impulse
No. 13-3012 3
control disorder and was being adequately treated. She also
opined that he was not a pedophile, based on her “experi-
ence with people who have had post-traumatic stress disor-
der from childhood sexual abuse and treating them” and her
discussion with Modjewski. The government elicited testi-
mony that Dr. Rone’s opinions were based on only one meet-
ing with Modjewski and she did not conduct any tests on
him, relying on tests conducted by others, and she did not
review any of the images he downloaded or traded.
After the government rested, the district court judge
asked questions of Dr. Rone. Those questions spanned elev-
en minutes and eleven pages of transcript, and primarily re-
lated to Dr. Rone’s diagnosis that Modjewski was not a pe-
dophile. For example:
Court: So in reaching your conclusion that he’s
not a pedophile, the type of images that he has
possessed or collected would be relevant,
wouldn’t it?
Dr. Rone: They absolutely would be relevant.
Court: And there would be a difference, in
your opinion, if, for example, he had pornog-
raphy in the area of—child pornography of 16-
to 18-year-old only. That would make a differ-
ence in your assessment of whether he was a
pedophile, right?
Dr. Rone: Well, again, your Honor, I was mak-
ing the assessment about his proclivity to being
a pedophile not on the basis of just the images,
but also on the basis of his psychiatric history
and his own experiences.
4 No. 13-3012
Court: Right, but that’s not my question. My
question is: It would make a difference in mak-
ing an assessment of pedophilia if these images
were solely those between 16- and 18-year-
olds, right?
Dr. Rone: Certainly it would make a difference.
I don’t think we would be talking about pedo-
philia —
Court: You wouldn’t be able to diagnose him
with pedophilia.
Dr. Rone: That’s correct.
Court: Okay. So when you say aroused by pre-
pubertal images, if an individual has those in a
collection and you didn’t view them, how do
you know that he’s not a pedophile? You never
looked at them, right?
Dr. Rone: Your honor, I don’t think I needed to
look at them based on the descriptions I read.
Defense counsel did not object to the court’s questions
(aside from an occasional relevance objection) or the fact that
the court was questioning the expert. When the judge fin-
ished, defense counsel asked Dr. Rone further questions on
redirect.
At the hearing’s conclusion, the judge noted: “I am not
going to make any finding today, nor do I need to make any
finding today, that this defendant will act out on any behav-
iors and will be a contact offender. I don’t think that is nec-
essary under the guideline calculations or the Sentencing
Commission’s report. I don’t think that this psychiatrist who
No. 13-3012 5
testified had enough experience in the field to opine on that
conclusion, nor will I.” The court continued:
The Court does not credit [Dr. Rone’s] finding
that [Modjewski is] not a pedophile. And I
don’t think it matters if I make a determination
of the term, because the term is really not nec-
essary for my findings. But I don’t think that
one can come to a conclusion under the DSM-5
[Diagnostic and Statistical Manual of Mental
Disorders, Fifth Edition] that an individual is
not a pedophile if she hasn’t taken into account
the actual images, viewing the actual images,
looking at the types of images, the time period
that they were stored, the amount of time that
they were accessed, and the period of time
over which he accessed the materials. That’s
critical to understanding whether someone has
a preference and a motivation and a determi-
nation to obtain these images under her own
definition. …
The Court doesn’t come to this study blindly.
As the parties know, I’ve—I have continually
read on the subject and stay up on the litera-
ture in this area and have written a treatise on
the issue of child exploitation. And so for the
appellate record, I have referenced some of the
materials from “Child Exploitation and Traf-
ficking: Examining the Global Challenges and
U.S. Responses,” many of which do support
some of the things that the doctor said, but not
all of the things.
6 No. 13-3012
I’m not, again, making a conclusion that he’s
acted out, nor that he will act out. That’s not a
conclusion I think that I need to make. So with
that in mind, the Court does find that the
number of images, the type of images, the long
period of time that the images were distribut-
ed, and the exacerbating fantasy and/or direct
languages contained in the chats show a very
aggravating circumstance and an individual
who is obsessed with sexual activity with pre-
pubescent individuals, and that that prepubes-
cent activity also includes harm. And, there-
fore, with that in mind, a pedophilic identifica-
tion, in the Court’s opinion, is much more ac-
curate.
The court found three mitigating factors and sentenced
Modjewski to a 15-year sentence, which was 30 months be-
low the 210-262 month advisory guideline range. After the
sentence was imposed, the government asked, “if the de-
fendant has other issues he felt should have been addressed
by the [sentencing judge] in [her] statement [explaining the
sentence], that he raise them now at this time.” Thereafter,
the sentencing judge, addressing Modjewski’s counsel, stat-
ed, “I have read all of the filings, but if you feel that there
was something that I needed to address specifically, … I
would be happy to do so.” In response, counsel only raised
two issues related to treatment programs for Modjewski.
Modjewski appeals his sentence.
No. 13-3012 7
II. ANALYSIS
A. Recusal Was Not Required
Modjewski argues the district court judge should have
sua sponte recused herself because she was biased or because
a reasonable person would question her impartiality. He ar-
gues both 28 U.S.C. § 455(a) and § 455(b)(1) required recusal.
Under § 455(a), a judge shall recuse herself “in any proceed-
ing in which [her] impartiality might reasonably be ques-
tioned.” Under § 455(b)(1), a judge should recuse herself
where she “has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding.” Modjewski must present “com-
pelling evidence” of bias so that a reasonable person would
be convinced the judge is biased. Grove Fresh Distribs., Inc. v.
John Labatt, Ltd., 299 F.3d 635, 640 (7th Cir. 2002).
First, we reject the government’s argument that Modjew-
ski’s motion was untimely. He appealed to this court when
the relevant acts—the judge’s questions and statements—
came to light. See United States v. Diekemper, 604 F.3d 345, 351
(7th Cir. 2010) (“[W]e have permitted a judicial bias concern
to be raised after trial when the bias did not become known
until the trial’s cessation.”). However, he did so without fil-
ing a motion to disqualify with the district court or a writ of
mandamus with this court. We cannot review a motion un-
der 28 U.S.C. § 455(a) without such filings. Id. at 352. Recusal
under § 455(a) is of little use to Modjewski anyway since “it’s
too late for us to order the judge removed from the case, be-
cause she’s through with it.” In re Bergeron, 636 F.3d 882, 884
(7th Cir. 2011); see also Diekemper, 604 F.3d at 352. Our ability
to review a recusal argument under § 455(b) without the
writ and what standard of review we use are “less clear.”
8 No. 13-3012
Diekemper, 604 F.3d at 351. As the government points out, we
have reviewed recusal arguments under § 455(b) for the first
time on appeal without a writ or motion filed with the dis-
trict court, and have done so under both the clear and plain
error standards. Id. (clear error); United States v. Smith, 210
F.3d 760, 764 (7th Cir. 2000) (same). But see United States v.
Lara-Unzueta, 735 F.3d 954, 958 (7th Cir. 2013) (plain error);
United States v. Ruzzano, 247 F.3d 688, 695 (7th Cir. 2001)
(same). Ultimately the argument fails under either, so we as-
sume without deciding that we can review the matter.
Modjewski argues the judge, “in essence, stepped into
the role of the prosecution” when she asked numerous direct
questions of the expert “for the purpose of countering [her]
conclusions.” He argues this demonstrates the judge’s “per-
sonal bias or prejudice.” 28 U.S.C. § 455(b)(1). A judge may
examine a witness. Fed. R. Evid. 614(b). However, she abuses
that authority when she “abandons [her] proper role and as-
sumes that of an advocate.” Fed. R. Evid. 614 advisory com-
mittee’s notes; cf. United States v. Alfaro, 336 F.3d 876, 883 (9th
Cir. 2003) (applying Rule 614 at sentencing). One of the main
reasons that such questioning can be prejudicial is that it can
influence the jury. See United States v. Barnhart, 599 F.3d 737,
744–46 (7th Cir. 2010) (finding judge in jury trial erred by
asking questions that “read like a cross-examination”). Here,
there was no jury, and “in non-jury proceedings, questioning
by the judge will rarely be prejudicial to the defendant.”
United States v. Webb, 83 F.3d 913, 917 (7th Cir. 1996). Moreo-
ver, many of the formalities that come with a criminal trial
are relaxed in sentencing. At sentencing, a court “may ap-
propriately conduct an inquiry broad in scope, largely un-
limited either as to the kind of information [she] may con-
sider, or the source from which it may come.” United States v.
No. 13-3012 9
Johnson, 489 F.3d 794, 796–97 (7th Cir. 2007) (internal quote
omitted).
While the tone and content of the judge’s questions read
somewhat like a cross-examination, it is the judge’s role to
fashion a sentence based on information with a sufficient in-
dicia of reliability. See id. The judge also plays the role of the
“gatekeep[er]” when it comes to expert evidence, ensuring
that it “both rests on a reliable foundation and is relevant to
the task at hand.” Daubert v. Merrell Dow Pharm., Inc., 509
U.S. 579, 597 (1993). At times a determination of reliability
will call for lengthy questioning and, at others, for direct
questions (if for no other reason than efficiency). See Webb, 83
F.3d at 917 (finding no abuse of discretion in judge’s ques-
tioning, which was “intended to speed the suppression hear-
ing along”). Here, there were eleven minutes of mostly to-
the-point questions. Yet the sheer volume of questions can-
not per se show the questioning is improper since there is no
principled way to determine how many questions are suffi-
cient or excessive, whether the judge was required to ask
more as a result of an uncooperative witness, and so forth.
See, e.g., United States v. Kidding, 560 F.2d 1303, 1314 (7th Cir.
1977) (holding no error in judge asking fifty-six questions
over twelve pages of transcript during bench trial). The
judge did not cut off the witness, demean her or impeach
her. Rather, the judge posed various pointed inquiries to
“question and even challenge” the reliability of Dr. Rone’s
testimony. United States v. Vallone, 698 F.3d 416, 468 (7th Cir.
2012), reinstated by United States v. Vallone, 752 F.3d 690 (7th
Cir. 2014). Moreover, to meet his burden that a judge should
be disqualified based on “judicial remarks during the course
of a trial that are critical or disapproving of, or even hostile
to, counsel, the parties, or their cases,” Modjewski must
10 No. 13-3012
show “such a high degree of favoritism or antagonism as to
make fair judgment impossible.” Liteky v. United States, 510
U.S. 540, 555 (1994). Modjewski has not presented compel-
ling evidence that the judge reached that level by asking a
large number of direct questions while determining which
evidence was reliable.
Modjewski next contends that the judge’s general
knowledge about child exploitation was a “disputed eviden-
tiary fact[] concerning the proceeding” that was used to con-
tradict the expert and therefore required her recusal. 28
U.S.C. § 455(b)(1). But, the judge’s broad extrajudicial
knowledge was not a “fact[] concerning the proceeding.” She
has written a treatise on the subject, as she stated on the rec-
ord, but there is no evidence she knew any extrajudicial facts
about Modjewski. Moreover, all of the information she knew
was available to the general public. Therefore, she did not
need to recuse herself. See, e.g., In re Hatcher, 150 F.3d 631,
635 (7th Cir. 1998) (finding no recusal necessary under
§ 455(b)(1) since the judge “learned nothing … that any
member of the public could not also have learned”); United
States v. Bonds, 18 F.3d 1327, 1331 (6th Cir. 1994) (Boggs, J., in
chambers) (holding recusal not necessary in criminal case
involving DNA matches despite judge’s attendance at DNA
conference); United States v. Payne, 944 F.2d 1458, 1476 (9th
Cir. 1991) (finding “expertise on and exposure to a subject …
does not necessitate recusal” in sexual abuse case where
judge had been on Attorney General’s Commission on Por-
nography).
Nor does the fact that the judge discounted the expert’s
opinion that Modjewski was a pedophile mandate recusal
since Dr. Rone’s own testimony—not any “personal
No. 13-3012 11
knowledge of disputed evidentiary facts” allegedly held by
the judge—provided the reasons to reject the diagnosis. The
first reason the judge gave for dismissing Dr. Rone’s opinion
was because “I don’t think that one can come to a conclusion
under the DSM-5 that an individual is not a pedophile if she
hasn’t taken into account the actual images.” Dr. Rone testi-
fied to that exact point, stating it would “absolutely be rele-
vant” under the DSM-5 to consider the type of images that
Modjewski has possessed or collected. Dr. Rone also admit-
ted she did not view those images. The judge then discredit-
ed the conclusion because Dr. Rone did not determine the
age group of individuals in the images, which Dr. Rone ad-
mitted would “certainly … make a difference” in assessing
pedophilia. Dr. Rone acknowledged she did not make such a
determination. So, based on Dr. Rone’s own testimony, the
judge rejected the conclusion as unreliable. See United States
v. Garthus, 652 F.3d 715, 720 (7th Cir. 2011) (affirming sen-
tence in child pornography case when the “judge was un-
persuaded [by an expert’s testimony] that the defendant
would forgo criminal activity after release from prison”);
United States v. Coopman, 602 F.3d 814, 818 (7th Cir. 2010) (af-
firming sentencing judge who rejected expert’s testimony
because judge “harbored serious concerns about the doctor’s
specific experience, methods, and analysis” in the child por-
nography case).
The judge’s more problematic action, from Modjewski’s
perspective, is not that she knew facts from outside of the
proceeding, but that she knew enough to ask informed ques-
tions. Yet, to hold that a judge may not ask such questions
would be to ignore that “she sits to see that justice is done in
the cases.” Collins v. Kibort, 143 F.3d 331, 336 (7th Cir. 1998)
(internal quotation omitted). The judge credited that testi-
12 No. 13-3012
mony which she found to be reliable and discredited that
which she did not, while giving reasons for both. That is the
role of the judge at sentencing, and Modjewski does not
challenge those determinations. To find recusal necessary
here, we would punish the judge for being well-informed.
Yet, we have previously noted that judges are not subject to
“eternal[] disqualif[ication]” in cases where they know the
subject matter well. See Schurz Commc’ns., Inc. v. FCC, 982
F.2d 1057, 1061 (7th Cir. 1992) (Posner, J., in chambers); see
also United States v. Alabama, 828 F.2d 1532, 1543 (11th Cir.
1987) (per curiam) (“All judges come to the bench with a
background of experiences, associations, and viewpoints. ...
A judge is not required to recuse himself merely because he
holds and has expressed certain views on a general subject.”
(internal citations omitted)). Any other ruling would result
in, for example, judges being forced to sit idly by if one party
presented uncontradicted, but known to the judge as wrong,
evidence.
Finally, Modjewski points to the court’s affirmative find-
ing of his pedophilic identification as cause for recusal. But,
again, the judge’s opinion was not a “fact” and therefore no
recusal was necessary. Cf. Fed. R. Evid. 702 (noting expert
“opinion[s]” based on “facts”). The court acknowledged as
much by defining Dr. Rone’s pedophilic identification as a
“conclusion” and the court’s own classification as her “opin-
ion” on the matter. By comparison, the facts in the case were
Modjewski’s actions and his collection, and there is nothing
in the record showing the court had any extrajudicial
knowledge of those facts.
However, the judge’s own diagnosis was not reliable ev-
idence upon which she could base a sentence. We have pre-
No. 13-3012 13
viously held that sentencing based on “speculation or un-
founded allegations” constitutes plain error. See United States
v. Halliday, 672 F.3d 462, 475 (7th Cir. 2012) (reversing be-
cause district court focused on defendant’s purported belief
in the lawfulness of his offenses without any evidence de-
fendant held that belief); cf. United States v. Bradley, 628 F.3d
394, 400 (7th Cir. 2010) (per curiam) (“Sentencing judges
necessarily have ‘discretion to draw conclusions about the
testimony given and evidence introduced at sentencing,’ but
‘due process requires that sentencing determinations be
based on reliable evidence, not speculation or unfounded
allegations.’” (internal citation omitted)); United States v.
England, 555 F.3d 616, 622 (7th Cir. 2009) (“[D]ue process re-
quires that sentencing determinations be based on reliable
evidence, not speculation or unfounded allegations.”). This
plain error was not raised by either party, but that does not
prohibit our review. “In exceptional circumstances, especial-
ly in criminal cases, appellate courts, in the public interest,
may, of their own motion, notice errors to which no excep-
tion has been taken, if the errors are obvious, or if they oth-
erwise seriously affect the fairness, integrity, or public repu-
tation of judicial proceedings.” United States v. Atkinson, 297
U.S. 157, 160 (1936); see also Fed. R. Crim. P. 52(b) (noting
plain error “may be considered even though it was not
brought to the court's attention”).
The judge’s opinion that Modjewski exhibited a pe-
dophilic identification cannot be based on Dr. Rone’s expert
opinion, since Dr. Rone testified to the contrary. Therefore,
the only basis for this opinion came from the judge herself,
but such a conclusion cannot be a reliable expert opinion
here. Expert opinions are based on specialized knowledge
and result from reliable principles and methods being ap-
14 No. 13-3012
plied to the facts of this case. See Fed. R. Evid. 702. Whether
someone should be diagnosed as a pedophile or having a
pedophilic identification is a conclusion for experts to make.
See, e.g., United States v. Boroczk, 705 F.3d 616, 620 (7th Cir.
2013) (noting conflicting expert testimony on pedophilic
identification); Garthus, 652 F.3d at 719 (noting expert testi-
fied as to pedophilic fantasies); United States v. Mantanes, 632
F.3d 372, 376 (7th Cir. 2011) (same). But the judge was not
admitted as an expert. She was not subject to a Daubert hear-
ing, and it is unclear who would even conduct such a hear-
ing. She did not disclose her methods for classifying
Modjewski, nor was she subject to cross-examination on her
opinions. Before a purported expert opinion is found relia-
ble, it is “crucial that a Daubert analysis of some form in fact
be performed.” Naeem v. McKesson Drug Co., 444 F.3d 593,
608 (7th Cir. 2006) (internal quotation omitted). That was not
done here. Since there was no other evidence in the record
upon which the judge could support her conclusion, her
finding of a pedophilic identification was speculative and an
error. Cf. United States v. Miller, 601 F.3d 734, 739-40 (7th Cir.
2010) (reversing where judge based sentence on belief that
sex offenders have higher than normal recidivism rates, but
there was an “absence of support in the record for the court’s
views”); United States v. Dorvee, 604 F.3d 84, 94 (2d Cir. 2010)
(finding sentence substantively unreasonable when district
court made the “assumption” defendant “was a ‘pedophile’
likely to engage in sexual conduct with a minor” despite
“expert record evidence to the contrary”).
We must now ask whether the error affected the defend-
ant’s substantial rights by evaluating whether the district
court’s error was not only plain “but also likely to ‘have re-
sulted in a different sentence.’” United States v. Corona-
No. 13-3012 15
Gonzalez, 628 F.3d 336, 341 (7th Cir. 2010). Modjewski bears
the burden of persuasion as to this question. See United States
v. Olano, 507 U.S. 725, 735 (1993); Corona-Gonzalez, 628 F.3d at
341. Modjewski fails to establish that the sentencing judge’s
pedophilic identification finding was likely to have resulted
in a different sentence. While it is problematic that she made
such a statement, in context of the whole hearing, we find
that she did not rely upon it. The record shows that the sen-
tencing judge repeatedly stated that she did not need to
make a finding of pedophilic tendencies to support the sen-
tence. See, e.g., Sent’g Hr’g Tr. 118, Dist. Ct. Dkt., ECF No.
156 (“I [do not] need to make any finding today, that this de-
fendant will act out on any [sexual] behaviors [toward chil-
dren] and will be a contact offender.”); id. at 119 (“I don’t
think that the psychiatrist who testified had enough experi-
ence in the field to opine on [whether Modjewski will en-
gage in sexual activity with a child] nor will I.”); id. (“[I]t will
not be a part of my conclusion that he will or will not act out
on his urges.”); id. at 127 (“The [c]ourt does not credit [Dr.
Rone’s] finding that [Modjewski] is not a pedophile. And I
don’t think it matters if I make a determination of the term,
because the term is really not necessary for my findings.”);
id. at 129 (“I’m not, again, making a conclusion that he’s act-
ed out [sexually against children], nor that he will act out.
That’s not a conclusion I think that I need to make.”); see also
id. at 132 (“I am going to go below the guideline range, but I
can’t go to a level that would probably make everyone feel
comfortable in your family because of the seriousness of the
offense.). The sentencing judge explicitly and repeatedly de-
nounced reliance on Modjewski’s pedophilic tendencies, and
under the circumstances here, we conclude that the finding
was not likely to have resulted in a different sentence. Cf.
16 No. 13-3012
McGee v. United States, 462 F.2d 243, 246 (2d Cir. 1972) (find-
ing the error likely impacted the sentence “absent some ex-
plicit indication to the contrary by the trial judge at the time
of sentencing”). Therefore, while the error is plain, we can-
not vacate the sentence because the plain error did not affect
Modjewski’s substantial rights.
B. Mitigation Arguments Were Addressed or Waived
“A sentencing court must address a defendant’s principal
arguments in mitigation unless they are too weak to merit
discussion.” United States v. Garcia-Segura, 717 F.3d 566, 569
(7th Cir. 2013). Modjewski argues that the district court nev-
er addressed all the arguments in mitigation put forth in the
eight motions and exhibits that he filed requesting variances
or contesting the government’s or the probation officer’s po-
sitions. However, the district court directly addressed many
of Modjewski’s arguments in mitigation including the U.S.
Sentencing Commission’s report to Congress about child
pornography offenses under U.S.S.G. § 2G2.2 (the guideline
used in this case), Modjewski’s risk of recidivism, Modjew-
ski’s cooperation with law enforcement, the circumstances
and nature of the offense, and offender characteristics, in-
cluding Modjewski’s own victimization.
Modjewski also argues that the district court did not spe-
cifically address his arguments regarding the continued risk
of being assaulted in prison and the sentencing disparity
among circuits in child pornography cases. Modjewski
waived these issues for appeal. After imposing the sentence,
the district court explicitly asked Modjewski’s counsel
whether he wished to raise any arguments. See Sent’g Hr’g
Tr. at 137 (“I have read all of the filings, but if you feel that
there was something that I needed to address specifically …
No. 13-3012 17
I would be happy to do so.”). Modjewski did not raise the
arguments he makes now, and instead, raised only two is-
sues related to treatment programs. As a result, Modjewski
waived the arguments in his appellate brief that the sentenc-
ing judge should have explicitly addressed his risk for as-
sault in prison and the sentencing disparities among circuits
in child pornography cases. See Garcia-Segura, 717 F.3d at 569
(encouraging sentencing courts after imposing the sentence
“to inquire of defense counsel whether they are satisfied that
the court has addressed their main arguments in mitigation”
and finding that if the argument was not raised, a later chal-
lenge for failure to address the argument would be consid-
ered waived); see also United States v. Donelli, 747 F.3d 936,
940–41 (7th Cir. 2014) (finding waiver of defendant’s argu-
ment that the district court failed to address a principal ar-
gument in mitigation where at the sentencing hearing the
judge asked defendant’s counsel if he “required ‘any further
elaboration’ of the reasons for the sentence,” and defendant’s
counsel did not raise the argument raised on appeal).
III. CONCLUSION
We therefore AFFIRM Modjewski’s sentence.