May 22, 2019
from the United States District Court for the Western
District of Wisconsin. No. 3:18-cr-00039-wmc-2 - William M.
Hamilton, Scudder, and St. Eve, Circuit Judges.
EVE, CIRCUIT JUDGE.
appeal, Valerie Flores challenges one condition of her
supervised release as unconstitutionally vague. She admits
that she did not raise the challenge in the district court,
but she asks that we review it for plain error. The first
step in plain-error review, as the Supreme Court has
repeatedly said, is to ask whether the defendant
intentionally relinquished the challenge she now presents.
See Rosales-Mireles v. United States, 138 S.Ct.
1897, 1904-05 (2018); Molina-Martinez v. United
States, 136 S.Ct. 1338, 1343 (2016); United States
v. Olano, 507 U.S. 725, 733 (1993). This is where
Flores's challenge fails. She had notice and opportunity
to make the challenge in the district court, she submitted
other sentencing challenges, and she affirmatively waived
reading of the conditions and their justifications at
sentencing. Her failure amounts to waiver, precluding
recognize, and will address, that in some cases we have
overlooked waiver concerns when reviewing supervised release
conditions for plain error. Those cases either presented
compelling reasons for forgiving waiver, which this case does
not present, or simply did not address waiver, usually
because the government did not press it. We emphasize, as the
Supreme Court has, that waiver is a threshold,
context-specific inquiry in plain-error review. Due to
Flores's waiver, we affirm.
January 2018, Wisconsin law enforcement learned via
confidential informants that Flores and her co-defendant had
traveled to California to obtain methamphetamine and
transport it back to Wisconsin to sell. Through her cell
phone, the officers tracked Flores and her co-defendant, who
were driving separate vehicles in tandem. Police conducted
traffic stops after the co-defendants returned to Wisconsin.
Searches of their vehicles revealed more than 300 pounds of
marijuana with a street value of approximately $1.8 million.
jury returned an indictment charging Flores with possession
with the intent to distribute 100 kilograms or more of
marijuana under 21 U.S.C. § 841(a)(1). Because Flores
had a prior state court conviction for a felony drug offense,
and was on supervision for that offense at the time of her
arrest, the government filed an information under 21 U.S.C.
§ 851 for enhanced penalties. Flores faced a mandatory
minimum sentence of ten years and a supervised release term
of eight years. See 21 U.S.C. §
2018, Flores pleaded guilty. Using the 2016 United States
Sentencing Guidelines Manual, the United States Probation
Office prepared Flores's Presentence Investigation
Report, Revised Presentence Investigation Report, and
addendum to the report (collectively "PSR").
to the PSR was the supervision plan listing the standard and
special conditions of supervised release. At issue on appeal
is standard condition #3 (employment condition), which
stated: "Defendant shall maintain lawful employment,
seek lawful employment, or enroll and participate in a course
of study or vocational training that will equip defendant for
suitable employment, unless excused by the probation officer
or the Court." In Flores's supervision plan, the
probation office noted that "defendant's employment
has been sporadic and inconsistent," and also
"[s]he has outstanding financial obligations." The
probation office's justification for the employment
condition stated, in part, "[e]vidence based practice
research indicates that lawful, stable employment and
education are pro-social activities that reinforce the
rehabilitation of defendant."
had the opportunity to object to the PSR and discuss
sentencing issues in writing before sentencing. In September
2018, she filed objections, corrections, and clarifications
to the PSR. She did not, however, object to any of the
proposed conditions of supervised release. A couple weeks
later, she filed a sentencing memorandum seeking the
mandatory minimum sentence to run concurrently with her state
sentence. Again, Flores did not object to any of the proposed
conditions of supervised release.
district court conducted Flores's sentencing hearing in
October 2018. At the beginning of the hearing, the court
asked Flores if she had the opportunity to read and discuss
her original PSR, the revised PSR, and the addendum to the
report with her attorney. Flores responded yes. Next, the
sentencing court noted that the government had no objections
to the PSR, but that Flores objected to the two-level
increase under U.S.S.G. § 2D1.1(b)(1) based on
maintaining a premise for manufacturing or distributing a
controlled substance. The court also discussed Flores's
objection to relevant conduct explaining that the amounts
were not included in the drug quantity analysis, and
therefore, had no impact under the sentencing guidelines.
imposing her sentence, the district judge asked Flores if
there was anything she would like to add. Flores had prepared
a written allocution, which she read into the record. She
I want to use this time serving my sentence for some major
self-improvement and to acquire skills and a college degree
that will serve me well when I get home. Whatever the outcome
of today ends up being, I will take every advantage and
opportunity possible to help with my sobriety and restart my
life with a positive perception on how things should be done
her allocution, the district court sentenced Flores to the
mandatory minimum of 120 months in prison. The court
recommended mental health treatment, drug abuse programs,
and, consistent with Flores's allocution, educational and
vocational training. Also, the court directed that
Flores's 120 ...