United States v. Monta Groce ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1170
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MONTA GROCE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 15-cr-78-wmc-01 — William M. Conley, Judge.
____________________
ARGUED JANUARY 14, 2020 — DECIDED MARCH 20, 2020
____________________
Before WOOD, Chief Judge, and ROVNER and ST. EVE, Circuit
Judges.
WOOD, Chief Judge. Monta Groce challenges two condi-
tions of supervised release that were imposed as part of his
sentence for various sex trafficking crimes. In the district
court, Groce did not object to either of the two conditions,
even though he objected to four others and waived his right
to have the district court read each condition and its justifica-
tion. We have faced this situation in several recent decisions
2 No. 19-1170
and have found that these circumstances normally amount to
waiver. There is nothing unusual in Groce’s case that would
call for a different result. We thus hold that he waived his ap-
pellate challenges to the two conditions, and we affirm.
I
In 2016, a jury convicted Groce of eight charges in a nine-
count indictment: three counts of sex trafficking in violation
of 18 U.S.C. §§ 1591(a)(1) and (b)(1); conspiracy to engage in
interstate transportation for prostitution in violation of 18
U.S.C. § 371; interstate transportation for prostitution in vio-
lation of 18 U.S.C. §§ 2421 and 2422; maintaining a drug house
in violation of 21 U.S.C. § 856(a)(1); using or carrying a firearm
in maintaining the drug house in violation of 18 U.S.C.
§ 924(c); and witness retaliation in violation of 18 U.S.C.
§ 1513(b)(2). The district court sentenced Groce to 25 years in
prison, to be followed by 20 years of supervised release.
Groce appealed and challenged his convictions for witness
retaliation and sex trafficking. The government conceded that
the jury instruction regarding the retaliation count was erro-
neous and that vacating this count of conviction was appro-
priate. We agreed with that assessment and so we vacated the
retaliation count, affirmed the district court’s judgment in all
other respects, and remanded for resentencing. United States
v. Groce, 891 F.3d 260, 271 (7th Cir. 2018).
Before resentencing, the probation officer issued a revised
presentence investigation report (PSR). The revised PSR rec-
ommended eleven standard conditions of supervised release
and seven special conditions. Among those conditions are the
two Groce now challenges in this, his second appeal:
No. 19-1170 3
Conditions 11 and 18. Condition 11, which was slightly al-
tered from the original PSR, states:
As directed by the probation officer, defendant shall
notify employers and third parties providing volun-
teer opportunities and educational opportunities; or-
ganizations to which defendant belongs; and neigh-
bors and family members with minor children, of de-
fendant’s criminal record based on risk associated with
his offense, his obligations to register as a sexual of-
fender, and the legal requirements under the Sex Of-
fender Notification Act. The probation officer may also
take steps to confirm defendant’s compliance with this
notification requirement or provide such notifications
directly.
Condition 18 states:
Have no contact with the victim in person, through
written or electronic communication, or through a
third party, unless authorized by the supervising U.S.
probation officer. Defendant shall not enter the prem-
ises or loiter within 1,000 feet of the victim’s residence
or place of employment.
At his resentencing, Groce confirmed that he had read his
PSR and reviewed it with his counsel. He objected to condi-
tions 4, 8, 15, and 17. The district court addressed those objec-
tions and modified one condition. Groce waived reading of
the remaining conditions and their justifications. His counsel
stated, “I’m aware of no grounds for objecting to the remain-
ing conditions, and we’re willing to waive the reading.” The
district court resentenced Groce to 25 years of imprisonment
and 20 years of supervised release.
4 No. 19-1170
II
Groce has now presented challenges to Conditions 11 and
18, both of which he contends are vague and overbroad. Groce
complains that Condition 11 is particularly unclear. He pro-
fesses to be unsure whether he must disclose only his criminal
record to third parties or whether he must also disclose the
risks associated with his offense, his obligations to register as
a sexual offender, and the legal requirements under the Sex
Offender Notification Act. With respect to Condition 18,
Groce asserts that he needs the names of the victim or victims
whom he is supposed to avoid, and that the condition is inva-
lid insofar as it does not require his contacts to be knowing.
Although Groce’s criticisms may be valid (though we
make no ruling on them one way or the other), he cannot pro-
ceed unless he can clear the waiver hurdle. We recently clari-
fied our approach to appeals in which the defendant chal-
lenges a supervised release condition for the first time on ap-
peal. In United States v. Flores, 929 F.3d 443 (7th Cir. 2019), we
held:
We will find waiver, as we do here, when the defend-
ant has notice of the proposed conditions, a meaning-
ful opportunity to object, and she asserts (through
counsel or directly) that she does not object to the pro-
posed conditions, waives reading of those conditions
and their justifications, challenges certain conditions
but not the one(s) challenged on appeal, or otherwise
evidences an intentional or strategic decision not to ob-
ject.
Id. at 450. In reaching that decision, we took into account the
fact that 18 U.S.C. § 3583(e)(2) permits defendants to
No. 19-1170 5
challenge a condition of supervised release, unlike other
terms of a sentence, at any time. Id. at 451.
Here, all the evidence points toward a waiver. At resen-
tencing, Groce confirmed that he had the opportunity to read
and discuss the revised PSR. In addition, Groce objected to
four conditions at the resentencing but not the two conditions
he now challenges. Groce also chose to waive reading of the
two conditions and their justifications. By choosing to pursue
certain arguments and forgoing others, Groce waived other
possible challenges. “Nor is this the ‘rare and limited instance’
when we may choose to overlook a waiver because the chal-
lenged condition concerns activity protected by the First
Amendment.” United States v. Anderson, 948 F.3d 910, 912 (7th
Cir. 2020) (citing Flores, 929 F.3d at 450).
Realizing that Flores controls this case, Groce asks us to
overturn that recent decision, arguing that it is inconsistent
with the Supreme Court’s definitions of waiver and forfeiture.
He cites United States v. Olano, 507 U.S. 725 (1993) which
states: “Waiver is different from forfeiture. Whereas forfeiture
is the failure to make the timely assertion of a right, waiver is
the ‘intentional relinquishment or abandonment of a known
right.’” Id. at 733 (citing Johnson v. Zerbst, 304 U.S. 458, 464
(1938)). Groce emphasizes that waiver must be intentional on
the part of the defendant and should be knowing and volun-
tary. Such intent should not be inferred, he contends, when a
defendant merely fails to object to a condition of supervised
release. Groce concludes that Flores incorrectly expanded the
definition of waiver.
Flores, however, is consistent with the Supreme Court’s ex-
planations of both waiver and forfeiture. In the end, the ques-
tion whether a defendant waived or forfeited a point depends
6 No. 19-1170
on a factual analysis of the proceedings. The circumstances in
which Flores said that we would normally find waiver are re-
liable indicia that a defendant is intentionally relinquishing a
known right. Contrary to Groce’s accusation, we are not
simply relying on a defendant’s silence. Flores alerts defend-
ants that the proper place to raise challenges to supervised re-
lease conditions is in the district court. If the defendant fails
to raise such a challenge, as mentioned above, the defendant
may still petition the district court for a modification of the
condition under 18 U.S.C. § 3583(e)(2). The record here leaves
no doubt that Groce intentionally refrained from challenging
Condition 11 and Condition 18, and so his appeal must fail at
the threshold.
We AFFIRM the district court’s judgment.