United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
RESA L. SPRINGMANN, District Judge.
The Defendant has pled guilty to conspiracy to distribute and possess with intent to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A). On April 9, 2014, the Court held a hearing in which the Defendant's counsel informed the Court that the Defendant had no objections to the factual statements or application of the guidelines as set out in the U.S. Probation Office's Presentence Investigation Report (PSR). However, defense counsel noted for the record that in his opinion the sentencing should be continued because of three potential objections that could reduce the Defendant's total offense level by up to six points. Despite these potential objections and defense counsel's advice to pursue them, counsel informed the Court that the Defendant wished to go forward with the sentencing without objecting to the PSR. Although the Defendant asserted he was not formally raising objections to the PSR and guideline calculations, the Court found he had raised potential issues with the guideline calculations and continued the Defendant's sentencing to clarify the issues and clearly address the issues so as to produce a full and complete record.
On April 11, 2014, the Defendant filed a Supplemental Sentencing Memorandum [ECF No. 256], signed by Defense counsel and the Defendant, confirming in written form the statements made during the April 9 hearing. The Defendant noted that the PSR established a total offense level calculation of 31 and guideline imprisonment range of 120 to 135 months, reflecting a mandatory minimum of 10 years. The Defendant then notes that he has been advised by his counsel that there are three specific objections to the PSR that could be raised to potentially reduce his total offense level.
The first potential objection is for the base offense level in light of recent actions taken by U.S. Attorney General Eric Holder and the U.S. Sentencing Commission. Paragraph 30 of the PSR sets the Defendant's base offense level at 32, pursuant to U.S.S.G. § 2D1.1. On April 10, 2014, the Sentencing Commission issued a news release stating that the Commission had voted unanimously to amend the Drug Quantity Table. In particular, the amendment would generally reduce by two levels the base offense levels for all drug types in the Drug Quantity Table in U.S.S.G. § 2D1.1. This proposed amendment, absent Congressional disapproval, will go into effect on November 1, 2014. Attorney General Holder endorsed this proposal and the U.S. Department of Justice, in a March 13, 2014, press release, noted that "the Justice Department will direct prosecutors not to object if defendants in court seek to have the newly proposed guidelines applied to them during sentencing."
The second potential objection is to paragraph 31 of the PSR, which contains a two-level increase for maintaining a premises for the purpose of manufacturing or distributing a controlled substance pursuant to USSG § 2D1.1(b)(12). Defense counsel asserts he has advised the Defendant to challenge the finding as he believes it is not factually supported, but the Defendant elects not to do so.
The third potential objection concerns whether the Defendant qualifies for the "safety valve" provisions set forth in § 5C1.2 of the U.S. Sentencing Guidelines and in 18 U.S.C. § 3553(f), which would allow the Defendant to be sentenced below the ten-year statutory mandatory minimum term of imprisonment required by 21 U.S.C. § 841(b)(1)(A). Defense counsel asserts that the Defendant meets the criteria for the safety valve, which would allow him to receive a two-level reduction of his total offense level in addition to qualifying for a sentence below the statutory mandatory minimum, but that he has been instructed by the Defendant not to pursue the safety valve. Taken altogether, Defense counsel believes that if the Defendant were successful on all three issues he would be eligible for a six-level reduction in his total offense level and a sentence with a range of imprisonment of 57 to 71 months.
The Government did not file a response to the Defendant's supplemental sentencing memorandum. However, during the April 9, 2014, hearing, the Government argued that the drug house enhancement and potential reduction based on drug quantity, the first and second potential objections, are largely irrelevant in light of the statutory mandatory minimum sentence of 10 years. The Government argues that the Defendant has not completed the five requirements under the safety valve provision. In particular, the Defendant has not completed the interview component and, because the Defendant has been unwilling to provide truthful information in an interview, he faces the ten-year statutory mandatory minimum.
The precedent regarding the waiver or forfeiture of rights by a criminal defendant is well-established.
"Waiver occurs when a criminal defendant intentionally relinquishes a known right." United States v. Haddad, 462 F.3d 783, 793 (7th Cir. 2006); United States v. Murry, 395 F.3d 712, 717 (7th Cir. 2005); United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000). Forfeiture occurs when a defendant negligently fails to assert a right in a timely fashion. Haddad, 462 F.3d at 793; Staples, 202 F.3d at 995. Waiver of a right extinguishes any error and precludes appellate review, whereas forfeiture of a right is reviewed for plain error. See Haddad, 462 F.3d at 793; Staples, 202 F.3d at 995.
United States v. Brodie, 507 F.3d 527, 530 (7th Cir. 2007). "A defendant who does not object to his sentence when asked whether he has any objections may communicate an intention to relinquish any arguments related to his offense calculation." Id. (citations omitted). A defendant may waive his right to raise objections to the PSR. See id. at 531 ("[I]t is clear from the record that [the defendant] had access to the PSR and knew of his right to object to the probation officer's recommendations. [The defendant] objected to certain parts of the PSR and stated on the record that he did not have any further objections when asked by the district court. This seems to us the paragon of intentional relinquishment."); see also Murry, 395 F.3d at 717 (holding that the defendant waived any objections when defense counsel replied definitely that he had no objections); United States v. Richardson, 238 F.3d 837, 841 (7th Cir. 2001) ("At sentencing the judge asked [the defendant's] lawyer whether he had an objection to the enhancement, and the lawyer said no.' This was a waiver in the strict sense of the term, that is, a deliberate relinquishment of a known right.").
Although "a lawyer's statement at sentencing that the defendant does not object to anything in the presentence report does not inevitably constitute a waiver, " United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005), "when the defendant selects among arguments as a matter of strategy, he also waives those arguments he decided not to present." Brodie, 507 F.3d at 531-32 (citing Jaimes-Jaimes, 406 F.3d at 848; United States v. Kindle, 453 F.3d 438, 442 (7th Cir. 2006); United States v. Cooper, 243 F.3d 411, 416 (7th Cir. 2001)). Here, the Defendant as well as counsel stated on the record that he had no objections to the PSR, even after counsel advised him of some potential objections he might raise. These potential objections were further laid out in his Supplement Sentencing Memorandum [ECF No. 256], a document signed by the Defendant and his attorney, where the Defendant acknowledged his counsel's advise but instructed his attorney not to object to the PSR. The Defendant has knowingly and under oath ...