United States v. Delrico Nelson ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐2811
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DELRICO J. NELSON,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 1:04‐cr‐10073‐001 — Sara Darrow, Chief Judge.
____________________
ARGUED JULY 10, 2019 — DECIDED JULY 24, 2019
____________________
Before EASTERBROOK, BARRETT, and BRENNAN, Circuit
Judges.
PER CURIAM. Delrico Nelson appeals the revocation of his
supervised release and ensuing 60‐month prison sentence. At
his revocation proceeding, he waived his right to a contested
hearing and stipulated that the government would be able to
provide evidence to show that he violated his terms of release.
Nelson now argues that his waiver was not knowing and
2 No. 18‐2811
voluntary. Because the totality of the circumstances demon‐
strates otherwise, we affirm the district court’s judgment.
I. BACKGROUND
In 2006, Nelson pleaded guilty to one count of possessing
more than 50 grams of cocaine with the intent to distribute,
see 21 U.S.C. § 841(a)(1), (b)(1)(A), and was sentenced to 16
years’ imprisonment and 10 years’ supervised release. After
being released from prison in 2014, Nelson—then serving su‐
pervised release—was arrested and charged with possession
of a controlled substance with intent to deliver. Based on Nel‐
son’s stipulation to violating his conditions of release, the dis‐
trict court (Judge Mihm) revoked Nelson’s supervised release
and sentenced him to 30 months’ imprisonment and 18
months’ additional supervised release.
Nelson began his second term of supervised release in
2017. In November that year, Nelson’s parole officer peti‐
tioned to revoke his supervised release based on allegations
that he had committed two counts of aggravated battery, one
count of possession of cannabis with intent to deliver, and one
count of possession of cannabis.
Nelson was brought to the district court (before Magis‐
trate Judge Shields) for an initial hearing on the petition to
revoke. The judge asked defense counsel whether he had the
chance to discuss the revocation petition with Nelson, and
counsel confirmed that he had. The judge then asked Nelson
if he understood “what the government [sought] to have oc‐
cur if this petition would be granted,” to which Nelson said
yes. The judge scheduled the final revocation hearing for two
months later.
No. 18‐2811 3
At the final hearing, the parties informed the court (this
time, Judge Darrow) that the government had agreed to rec‐
ommend a lower sentence (41 months’ imprisonment—
10 months below the recommended guideline range†) in ex‐
change for Nelson’s stipulation that he violated his terms of
release and waiver of his right to a contested revocation hear‐
ing. Judge Darrow informed Nelson that, if he wished to pro‐
ceed and so stipulate, his stipulation could not be conditioned
on the court’s acceptance of the proposed sentence. Nelson
responded “I ain’t got no say no way. Just go on and agree to
it.” The judge expressed concern about the voluntariness of
his stipulation. She directed Nelson to confer with his lawyer,
who, after an exchange with Nelson, assured the court that
Nelson understood “all the principles” and did not “want to
fight it anymore.” The judge asked Nelson if he agreed with
his attorney’s statement, and Nelson answered that he did.
Nelson, under oath, then stipulated that the government
would be able to provide enough evidence for the court to
find by a preponderance of the evidence that he had violated
conditions of his supervised release. The judge then ques‐
tioned Nelson about the voluntariness of his stipulation and
said that she sensed reluctance. Nelson responded that he was
frustrated with the situation because he had “no say in noth‐
ing that happened.” Nelson added, however, that he was
“okay with stipulating” and did not need a full hearing be‐
cause he had violated the conditions of his supervised release
† Based on Nelson’s criminal history category, the guidelines recom‐
mended 51–63 months’ imprisonment, see USSG § 7B1.4(a), though
18 U.S.C. § 3583(e)(3) capped any sentence at 60 months.
4 No. 18‐2811
“just by being arrested.” The judge proceeded to accept the
stipulation.
The government and defense counsel then argued in sup‐
port of their jointly proposed 41‐month prison term. The gov‐
ernment defended the need for a downward departure be‐
cause Nelson’s stipulation avoided the expense and time of
conducting a contested evidentiary hearing and, besides,
there were “some Fourth and Fifth Amendment issues with
proving up the violations beyond a reasonable doubt.” The
government added that there was less of a need for specific
deterrence because Nelson would likely be prosecuted and
receive a sentence in state court for the underlying violations.
Defense counsel seconded the need for a lesser penalty, given
that Nelson was being punished not because he had been
found guilty beyond a reasonable doubt of committing state
law violations, but because he had violated his terms of su‐
pervised release by a preponderance of the evidence.
Nelson was then invited to allocute. He began by stating
that he “was under the impression from reading the statute
… that just being arrested [was] a violation of [his] term.” The
district court interrupted him: “Well, just being arrested isn’t
enough, but [it would be enough] if you’re agreeing that the
government would call the witnesses … to testify and that
they would testify to the facts that they outlined. So it’s not
just being arrested.” When asked if he understood that, Nel‐
son answered yes.
The court ultimately rejected the parties’ joint recommen‐
dation and sentenced Nelson to 60 months’ imprisonment,
the statutory maximum. The court did not agree that a down‐
ward departure was warranted, explaining that it was unper‐
suaded that avoiding the expense of a contested hearing
No. 18‐2811 5
justified a reduced sentence. The court then dismissed as
speculative the government’s suggestion that Nelson would
be separately convicted in state court, and so it refused to ad‐
just the sentence based on that argument. Finally, the court
was concerned with Nelson’s criminal history and the fact
that his prior revocation and subsequent sentence did not de‐
ter him from engaging in unlawful conduct.
II. ANALYSIS
Nelson’s appeal centers on one overarching argument:
that his waiver of a contested revocation hearing was not
knowing and voluntary. See United States v. Boultinghouse,
784 F.3d 1163, 1172 (7th Cir. 2015) (explaining that defend‐
ant’s waiver of any procedural right granted by Rule 32.1
must be knowing and voluntary); United States v. LeBlanc,
175 F.3d 511, 515 (7th Cir. 1999) (same).
At the outset, the parties disagree on the standard of re‐
view that governs this issue. Nelson asserts that the question
whether a waiver is knowing and voluntary is subject to de
novo review. The government counters that plain error must
apply when a defendant like Nelson challenges his waiver of
a contested revocation hearing for the first time on appeal.
See FED. R. CRIM. P. 52(b). The government is correct: Nelson’s
failure to preserve his challenge constitutes forfeiture and
limits this court’s review of his claim to plain error. See United
States v. Vonn, 535 U.S. 55, 71 (2002); United States v. Luepke,
495 F.3d 443, 446–47 (7th Cir. 2007); United States v. Reyna,
358 F.3d 344, 350 (5th Cir. 2004) (en banc).
As for the merits, Nelson first argues that his waiver was
not knowing and voluntary because he did not understand
the charges against him. Pointing to his colloquy with Judge
6 No. 18‐2811
Darrow, he contends that he misunderstood whether “just be‐
ing arrested” constituted a violation of his release. But even if
we assumed that Nelson still was confused after the district
judge told him that “being arrested isn’t enough” to constitute
a violation, the totality of the circumstances show that his
waiver was knowing and voluntary. Nelson had the oppor‐
tunity to review the violation memorandum and discuss it
with his attorney in advance of the hearing. See FED. R. CRIM.
P. 32.1(b)(2)(A); United States v. Jones, 774 F.3d 399, 403
(7th Cir. 2014) (“[The defendant] received all the process due
him at his revocation proceedings. He was given adequate no‐
tice, represented at all times, [and] appeared at the hear‐
ing….”). He did not object to the contents of the revocation
memorandum, and further conceded that the government
could and would present facts demonstrating that he commit‐
ted the offenses of aggravated battery, possession, and intent
to distribute. And he acknowledged that the offense that led
to his prior revocation of supervised release resembled the of‐
fenses that he was alleged to have committed this time.
The cases that Nelson relies on in support of his argument
are unavailing. In United States v. Correa‐Torres, 326 F.3d 18(1st Cir. 2003), the First Circuit concluded that the appellant’s
revocation waiver was not knowing and voluntary because
the charges underlying his alleged violation were never set
forth in the revocation proceedings, and the appellant ap‐
peared to believe that he did not commit a crime at all, id. at
24. But here, Nelson read the violation memorandum and de‐
clared that he understood the charges against him: aggra‐
vated assault, possession of cannabis, and intent to distribute
cannabis. The government also orally described the factual
predicate of the allegations during the hearing. Likewise, Nel‐
son cites United States v. Pineda‐Buenaventura, 622 F.3d 761No. 18‐2811 7
(7th Cir. 2010), for the proposition that a waiver is unknowing
when a court fails to remedy a mistaken understanding that
an arrest by itself violates the terms of supervised release. But
that case involved allegations of an inchoate crime, and the
defendant there demonstrated a lack of understanding of
what crime he was charged with committing. Here, Nelson
acknowledged what conduct he was alleged to have engaged
in and what the resulting charges were. And unlike the de‐
fendant in Pineda‐Buenaventura, Nelson admitted that the gov‐
ernment here had sufficient evidence to prove that he com‐
mitted the crimes as charged.
Nelson next contends that his waiver was not knowing
and voluntary because he did not understand that he would
be waiving his right to present evidence and cross examine
witnesses. See FED. R. CRIM. P. 32.1(b)(1)(B). But the district
court was not required to address in checklist fashion each
procedural right that Nelson was waiving when stipulating
that he had violated his terms of release. See Boultinghouse,
784 F.3d at 1172. Instead, “where the record confirms that the
defendant had a sufficient grasp of a particular right or con‐
sequence of the waiver that the court may have omitted from
its admonishments, we will sustain the waiver as knowing
notwithstanding the gap in the colloquy.” Id. And based on
the record, Nelson had to have understood the rights that he
was waiving and the consequences of doing so. He was rep‐
resented by counsel, and he said that he understood that he
was waiving his right to a full hearing and his right to chal‐
lenge the length of his sentence. What is more, earlier at his
first revocation hearing (where he similarly stipulated that he
had violated the terms of his release), Nelson waived his
rights to compel witnesses to appear on his own behalf and to
cross‐examine the government’s witnesses. Based on his prior
8 No. 18‐2811
experience waiving a contested revocation hearing, see United
States v. Scott, 900 F.3d 972, 975 (7th Cir. 2018), Nelson had to
have known what rights he was waiving by foregoing a full
evidentiary hearing.
Finally, Nelson contends that his waiver was not knowing
and voluntary because it was premised on erroneous legal ad‐
vice. He contends that, had he known that his lawyer’s argu‐
ments for a 41‐month sentence would have been summarily
dismissed by the court, he never would have waived his right
to a contested revocation hearing. But he cites no cases to sug‐
gest that reliance on a lawyer’s unsuccessful arguments ren‐
ders such a waiver not knowing and voluntary. The cases that
he relies on for this contention deal with the ineffective assis‐
tance of counsel, see United States v. Jones, 861 F.3d 687, 690–91
(7th Cir. 2017); United States v. McCoy, 215 F.3d 102, 107–08
(D.C. Cir. 2000), which is not a claim that he develops here.
We AFFIRM the district court’s judgment.