United States v. Travis Barrett ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2254
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TRAVIS J. BARRETT,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:17-cr-00001 — Joseph S. Van Bokkelen, Judge.
____________________
ARGUED OCTOBER 6, 2020 — DECIDED NOVEMBER 30, 2020
____________________
Before WOOD, BRENNAN, and SCUDDER, Circuit Judges.
SCUDDER, Circuit Judge. In United States v. Flores, we ad-
dressed ambiguity in our case law by announcing a clear and
precise rule for resolving the all-too-common circumstance of
a criminal defendant contending for the first time on appeal
that a condition of supervised release is unconstitutionally
vague, despite having received notice of all proposed condi-
tions before sentencing and then availing himself of the op-
portunity to object to other conditions. We held such a course
2 No. 19-2254
of action constitutes waiver, rendering the challenge unre-
viewable on appeal. This principle requires us to affirm Travis
Barrett’s sentence here.
I
In 2016 federal authorities found Barrett with nearly
15,000 images and 2,450 videos of child pornography. A
search of his computer also turned up a “Pedophile’s Hand-
book.” Barrett responded to the ensuing federal charges by
pleading guilty to possessing child pornography. He did so
pursuant to a plea agreement with a provision waiving any
appellate challenge “on any ground” to “all components” of
his sentence. Barrett confirmed that he understood the waiver
during his plea colloquy. The district court sentenced Barrett
to 97 months’ imprisonment followed by 10 years of super-
vised release.
Barrett now contends that the district court violated his
First Amendment rights by imposing a condition of super-
vised release that will prevent him from viewing any material
depicting “sexually explicit conduct,” defined in 18 U.S.C.
§ 2256(2) to include adult pornography. But Barrett never
raised this challenge at sentencing, despite having a full and
fair chance to do so. How this happened is worth explaining,
for we have seen this exact course of conduct many times in
recent years and have sought to bring its recurrence to an end.
Barrett confirmed at sentencing that he had not only re-
ceived advance notice of all 34 proposed conditions of super-
vised release, but also discussed them with his counsel. He
waived a public reading of each condition. From there the dis-
trict court invited any objections, and Barrett responded with
several. The objections resulted in a colloquy with the district
No. 19-2254 3
court and ended with rulings on each challenged condition.
The process, in short, worked as designed: Barrett raised ob-
jections and explained his positions, the government re-
sponded with its views, and the district court ruled on the
challenges one at a time. The district judge even took care to
invite further challenges to prevent Barrett from waiving any
lingering objection.
At no point during or in advance of sentencing, however,
did Barrett or his counsel utter a word about Condition 31.
Perhaps foregoing an objection was an oversight by Barrett
and his counsel. Mistakes happen. Or perhaps passing on the
objection reflected sound strategy, for it is easy to see why a
defendant standing before a district court for sentencing on a
sexual offense against children would find it unwise to ex-
press future interest in viewing adult pornography. Whatever
the explanation, the record is clear: Barrett expressed no res-
ervation with, and asked no questions about, Condition 31.
In these circumstances, and separate and apart from the
broad appellate waiver he agreed to in his plea agreement,
Barrett runs headlong into the rule we announced in United
States v. Flores: a waiver of an objection to a condition of su-
pervised release occurs “when the defendant has notice of the
proposed conditions, a meaningful opportunity to object, and
she asserts (through counsel or directly) that she does not ob-
ject to the proposed conditions, waives reading of those con-
ditions and their justifications, challenges certain conditions
but not the one(s) challenged on appeal, or otherwise evi-
dences an intentional or strategic decision not to object.”
929 F.3d 443, 450 (7th Cir. 2019). Every condition identified in
Flores is present here, and that reality forecloses our review of
Barrett’s belated challenge to Condition 31.
4 No. 19-2254
That Barrett contests Condition 31 in the name of the First
Amendment is of no moment. Pointing to United States v. Ad-
kins, 743 F.3d 176 (7th Cir. 2014), he argues that we have per-
mitted challenges to conditions that touch on First Amend-
ment rights, even where those challenges would be otherwise
waived. Barrett misunderstands our holding. We do not read
Adkins as creating a general, open-ended First Amendment
exception to our waiver doctrine, and certainly not after our
clarifying decision in Flores. We have since underscored that
Flores “was not a mistaken fluke—it is controlling law.” United
States v. Anderson, 948 F.3d 910, 912 (7th Cir. 2020).
Whatever remains of any First Amendment exception pos-
ited by Adkins is a question we save for another day. What is
plain beyond debate here is that Barrett waived his challenge
to Condition 31 by not presenting it to the district court.
Make no mistake about our holding. In no way are we say-
ing that criminal defendants cannot challenge conditions of
supervised release as unconstitutionally vague. They surely
can (and do), and our doors remain open to considering such
challenges if defendants take care to present the issue to the
district court in the first instance.
II
We close by responding to Barrett’s assignment of fault to
his counsel for failing to challenge Condition 31 before or dur-
ing sentencing. Barrett notes that at one point his counsel
could not answer a question from the court because he was
“still in shock” at the 97-month sentence. This claim sounds
in ineffective assistance of counsel—a claim Barrett’s plea
agreement authorizes him to pursue under 28 U.S.C. § 2255should he wish to do so. See United States v. Cates, 950 F.3d
No. 19-2254 5
453, 457 (7th Cir. 2020). We have repeatedly reminded crimi-
nal defendants that collateral review, not direct appeal, is far
and away the proper and best channel for raising an ineffec-
tive assistance of counsel claim. See, e.g., id. at 456–57 (collect-
ing cases emphasizing the same point).
For these reasons, we AFFIRM.