In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1612
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A LAN D. A NDERSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05-CR-240—Rudolph T. Randa, Judge.
A RGUED JANUARY 14, 2010—D ECIDED M AY 13, 2010
Before F LAUM, R OVNER, and H AMILTON, Circuit Judges.
F LAUM, Circuit Judge. Defendant-appellant Anderson
argues that the government breached a plea agreement
when it failed to move for a reduction to defendant’s
offense level pursuant to United States Sentencing Guide-
lines § 3E1.1(b). In the absence of a formal motion by
the United States, the district court could not apply the
reduction. The government concedes breach, but because
appellant did not object at sentencing, we review
the judgment under a plain-error standard. Anderson
2 No. 09-1612
does not demonstrate that he was prejudiced by the
violation and we find no miscarriage of justice. Any
procedural flaws in the sentencing hearing are harm-
less and we affirm.
I. Background
Anderson was indicted in the fall of 2005 as part of a
large-scale racketeering case focusing on the Latin Kings
street gang. On January 30 of that year, he shot Efrin
Delgado with a sawed-off shotgun from close range
after the two got into an argument over a woman while
at a bar. Delgado survived but suffered permanent
injuries. Anderson handed the shotgun off to an
associate, Rogelio Guarnero. Authorities recovered the
weapon at Guarnero’s house the next day, pursuant to
a valid search warrant. Anderson was charged with
conspiracy to commit racketeering, conspiracy to possess
with intent to distribute large quantities of crack and
powder cocaine, possession of an unregistered shotgun
with a barrel length of less than 18 inches (Count
Twenty-Four), and conspiracy to distribute cocaine. On
Nov. 5, 2008, after three years of pretrial proceedings,
Anderson and co-defendant Martin Martinez proceeded
to trial before a jury.
Two weeks before trial, the government offered Ander-
son a plea agreement that stipulated, inter alia:
The government agrees to recommend a two-level
decrease for acceptance of responsibility as authorized
by Sentencing Guidelines Manual § 3E1.1(a), but
No. 09-1612 3
only if the defendant exhibits conduct consistent with
the acceptance of responsibility. In addition, if the
court determines at the time of sentencing that the
defendant is entitled to the two-level reduction
under § 3E1.1(a), the government agrees to make a
motion recommending an additional one-level de-
crease as authorized by Sentencing Guidelines Manual
§ 3E1.1(b) because the defendant timely notified
authorities of his intention to enter a plea of guilty.
Section 3E1.1 reads:
(a) If the defendant clearly demonstrates acceptance
of responsibility for his offense, decrease the offense
level by 2 levels.
(b) If the defendant qualifies for a decrease under
subsection (a), the offense level determined prior to
the operation of subsection (a) is level 16 or greater,
and upon motion of the government stating that the
defendant has assisted authorities in the investigation
or prosecution of his own misconduct by timely
notifying authorities of his intention to enter a plea
of guilty, thereby permitting the government to
avoid preparing for trial and permitting the govern-
ment and the court to allocate their resources effi-
ciently, decrease the offense level by 1 additional level.
Comment 6 to § 3E1.1 states, in relevant part:
The timeliness of the defendant’s acceptance of re-
sponsibility is a consideration under both subsec-
tions, and is context specific. In general, the conduct
qualifying for a decrease in offense level under sub-
4 No. 09-1612
section (b) will occur particularly early in the case.
For example, to qualify under subsection (b), the
defendant must have notified authorities of his inten-
tion to enter a plea of guilty at a sufficiently early
point in the process so that the government may
avoid preparing for trial and the court may schedule
its calendar efficiently.
On the theory that the government “is in the best position
to determine whether the defendant has assisted authori-
ties in a manner that avoids preparing for trial,” the
Guidelines make the § 3E1.1(b) reduction available
only upon a formal government motion.
After three days of trial, Anderson came to court with
a signed copy of the plea agreement in which he
pleaded guilty to Count 24 (possessing an unregistered,
sawed-off shotgun). The PSR recommended that appel-
lant receive a two-level § 3E1.1(a) reduction, but not the
additional third point for prompt notification under
§ 3E1.1(b). Judge Randa began the hearing by remarking
that he “has read the [Presentence Investigation Report’s
(“PSR”)]” and was “prepared to proceed.” At that point,
Anderson stated he and his lawyer “went over [the
PSR] together” and that he had no objections to the
PSR beyond a minor factual correction. Later, appellant’s
counsel contested his involvement in the shooting
and objected to the PSR's recommendation of a
cross-reference from the firearm guideline (§ 2K2.1) to the
attempted murder guideline (§ 2A2.1(a)(2)), but said
nothing about acceptance of responsibility credits. During
a lengthy allocution, Anderson also left the topic of § 3E1.1
No. 09-1612 5
untouched. In fact, he stated “I understand that I went to
trial and took a plea in the middle of trial.”
The PSR identified a base offense level of 27 under the
attempted murder guidelines. Regarding the § 3E1.1(b)
reduction, the report stated:
According to the plea agreement, the government
intends to file a motion for an additional one level [sic]
reduction. However, Mr. Anderson did not timely
notify authorities of his intention to enter a plea of
guilty. Mr. Anderson appeared before the Court for
jury trial and then entered a plea of guilty. Therefore,
an additional one level [sic] decrease is not given.
Given Anderson’s criminal history, the report calculated
an applicable guideline sentence of 121 to 151 months
coupled with supervised release of 2 to 3 years. The
statutory maximum punishment for possession of a
sawed-off shotgun, however, was 120 months’ imprison-
ment. During the hearing, the court engaged Ander-
son in a lengthy discussion about appellant’s family, up-
bringing, criminal history, motivation for joining a gang,
and the immense threat that gang violence posed to com-
munities. Following allocution, Judge Randa continued
to view Anderson skeptically, noting that the defendant
“seems to think he can do everything better than someone
else, including his legal representation.” The court thus
sentenced Anderson to the maximum 120-month sen-
tence. It also imposed a three-year term of supervised
release, stating:
Now, I have to place you on supervised release,
Mr. Anderson. And I’m going to set—obviously set
some conditions of supervised release. I’m going to
6 No. 09-1612
waive the fine in this case, because you don’t have,
as the analysis of your economic circumstances dis-
closes, the ability to pay a fine in this case. Minimum
fine is $15,000. Statutory. But you do have to pay the
$100 mandatory special assessment, which the
Court informed you of at the time of your plea. . . .
Now, the Court’s disposition again also as to Count 24,
supervised release for 3 years.
Judge Randa then went on to explain the conditions of
the supervised release and their respective justifications.
One of his comments reads as follows: “The presentence
report indicates that you were a marijuana user,
Mr. Anderson, so the Court—unless the defense objects—
is going to recommend that he participate in a drug
treatment program.” No objection followed.
Anderson puts forward two claims. First, he argues
that the district court committed clear error that runs
against the interests of justice when it neglected to hold
the government to the terms of the plea agreement. Ac-
cordingly, he asks that we remand the case to the
district court for rehearing on the issue. Second, he
asserts that the district court did not adequately con-
sider the factors specified in 18 U.S.C. § 3553(a) prior
to sentencing defendant to three years of supervised re-
lease.
II. Discussion
The threshold issue in Anderson’s appeal of his sen-
tence is whether he merely forfeited or fully waived his
right to object to the guideline calculation. His counsel
No. 09-1612 7
acknowledges at least the former by stating that
“Mr. Anderson did not raise the government’s obliga-
tion to move for the third point for acceptance of responsi-
bility in the district court and has forfeited it for re-
view.” If we accept this argument, we would review
Judge Randa’s decision for plain error because Anderson
never presented his claim to the district court. See Fed. R.
Crim. P. 52(b); Puckett v. United States, 129 S. Ct. 1423,
1429 (2009); United States v. Huffstatler, 571 F.3d 620, 622
(7th Cir. 2009); United States v. Ortiz, 431 F.3d 1035, 1038
(7th Cir. 2005).
On the other hand, the government asserts that
Anderson affirmatively waived his right to appellate
review of the third-point reduction by endorsing the
PSR. That is, the United States attempts to portray the
lack of objections to the government’s compliance with
the plea agreement as a strategic decision by Anderson.
From this perspective, appellant stayed quiet because
he sought to divert the court’s attention from whether
any § 3E1.1 adjustment for acceptance of responsibility
was appropriate in his case at all. See United States v.
Jones, 52 F.3d 697, 701 (7th Cir. 1995) (holding that a
sentencing judge may look for “genuine remorse” or
complete acceptance of responsibility before awarding a
reduction under § 3E1.1(a)).
To distinguish between forfeiture and waiver, we
examine a party’s state of mind at the time that an objec-
tion could have been raised. Forfeiture takes place
when counsel or a defendant negligently bypasses a
valid argument. See United States v. Olano, 507 U.S. 725,
8 No. 09-1612
733 (1993); United States v. Cooper, 243 F.3d 411, 416 (7th
Cir. 2001). By contrast, waiver requires a calculated
choice to stay silent on a particular matter. Olano, 507
U.S. at 733 (“[W]aiver is the ‘intentional relinquishment
or abandonment of a known right.’ ”) (citations omitted);
United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir.
2005) (“There may be sound strategic reasons why a
criminal defendant will elect to pursue one sentencing
argument while also choosing to forego another, and
when the defendant selects as a matter of strategy, he
also waives those arguments he decided not to present.”);
see also United States v. Jacques, 345 F.3d 960, 962 (7th Cir.
2003). “Unlike forfeiture, waiver is not subject to plain
error analysis, because the waiver extinguishes any error.”
United States v. Redding, 104 F.3d 96, 99 (7th Cir. 1996).
We have previously held that defense counsel’s oral
acceptance of the terms of a PSR without objections
constitutes a waiver of the defendant’s rights to subse-
quently challenge the sentence. United States v. Brodie,
507 F.3d 527, 531-32 (7th Cir. 2007); United States v.
Staples, 202 F.3d 992, 995 (7th Cir. 2000). As we ex-
plained in our decision in Jaimes-Jaimes, however, there
is no rigid rule for finding waiver in acquiescence.
Instead, we evaluate each omission individually. Jaimes-
Jaimes, 406 F.3d at 848. Where the government cannot
proffer any strategic justification for a decision, we
can assume forfeiture. Brodie, 507 F.3d at 532.
Under the aforementioned precedent, this case is a
close one. Anderson may have well tried to salvage a
generally favorable plea agreement to the greatest
No. 09-1612 9
extent possible after seeing a conviction looming on
the horizon. An objection on the grounds that the gov-
ernment failed to move for a promised § 3E3.1(b) reduc-
tion would not have advanced Anderson’s cause by
much because by its terms, the credit applies only to
defendants who plead guilty early enough that “the
government may avoid preparing for trial.” We need not
identify the exact point in time at which an individual
becomes ineligible for § 3E3.1(b), but we have no dif-
ficulty concluding that Anderson, who brought the
signed plea agreement in on the fourth day of trial, was
too late. Appellant’s counsel may have anticipated that
the district court would also reach this reasonable con-
clusion and decided that the argument was not worth
advancing. Indeed, she and Anderson could have
thought that asking for the third-level reduction would
antagonize the sentencing judge and undermine any
further plea for leniency. Such a strategic choice is the
epitome of waiver, but the record before us requires us
to draw several speculative inferences to reach this con-
clusion.
We need not do so to resolve this case. Waiver
principles must be construed liberally in favor of the
defendant. United States v. Sumner, 265 F.3d 532, 539 (7th
Cir. 2001). The only way Anderson could have moved
the guidelines below the ten-year ceiling set out in 26
U.S.C. § 5871 was to ask for all three offense level credits.
If failure to do so amounted to a deficiency on behalf of
his counsel, our usual presumption that attorneys act
reasonably would necessitate a finding of forfeiture. See
Jaimes-Jaimes, 406 F.3d at 848 (“[A]n argument should be
10 No. 09-1612
deemed forfeited rather than waived if finding waiver
from an ambiguous record would compel the conclusion
that counsel necessarily would have been deficient to
advise the defendant not to object.”) (citing United States
v. Richardson, 238 F.3d 837, 841 (7th Cir. 2001)); United
States v. Farr, 297 F.3d 651, 658 (7th Cir. 2002) (stating that,
in the Sixth Amendment context, “[w]e presume
that counsel is effective, and a defendant bears a heavy
burden in making out a winning claim based on inef-
fective assistance of counsel.”). Yet even under plain
error review, which would require a most generous
reading of the record, the United States would prevail.
Applying that standard, we would reverse the deter-
mination of a district court only when we find: (1) an
error or defect (2) that is clear or obvious (3) affecting
the defendant’s substantial rights (4) and seriously im-
pugning the fairness, integrity, or public reputation of
judicial proceedings. Olano, 507 U.S. at 736. The parties
agree that the government’s failure to move for a § 3E1.1(b)
reduction satisfies elements 1 and 2. Anderson claims
that his case fulfills condition 3 as well, since the extra
point reduction could have changed his guideline range
from 121 to 151 months to 110 to 137 months. Therefore,
but for the breach, Judge Randa could have sentenced
Anderson to a term shorter than the statutory maximum
120 months while remaining within the guideline
range. Such a possibility is not enough to satisfy the
“remarkably demanding” plain error test. United States
v. Salazar, 453 F.3d 911, 913 (7th Cir. 2006). “In the con-
text of an arguably breached plea agreement, [defen-
dant-appellant] must show that but for the breach, his
No. 09-1612 11
sentence would have been different.” Id.; see also United
States v. D’Iguillont, 979 F.2d 612, 614 (7th Cir. 1992). He
has not done so here, where the district court con-
sciously imposed the maximum punishment permitted
by law on an individual it viewed as recalcitrant. More-
over, Anderson cannot demonstrate that he suffered
from a manifest miscarriage of justice necessary for
relief. Cf. United States v. White, 903 F.2d 457, 466-67 (7th
Cir. 1990). The alleged deficiency was the govern-
ment’s failure to move for a reduction that, as we ex-
plained above, was inapplicable on its face. Since we
are confident that Judge Randa would have exercised
his discretion to avoid awarding Anderson the benefits
of § 3E1.1(b), we find no plain error in the district
court’s sentencing decision.
Likewise, we find no merit in Anderson’s claim that
the district court failed to properly consider the factors
listed in 18 U.S.C. § 3553(a) when sentencing him to
three years of supervised release. Appellant concedes
that Judge Randa’s extensive discussion of gang violence
and Anderson’s background covered all necessary bases
for the 120-month sentence. But he argues that the court
did not make the requisite findings when he moved on
to the supervised release stage of the sentence. Anderson
takes particular issue with the fact that Judge Randa
never recited that guideline range for supervised release
during the hearing. That is, according to the appellant,
the shift in topics demanded a separate comprehensive
analysis.
12 No. 09-1612
We have never required such repetition from the
district court. When reviewing a sentence, we first check
the proceedings under an abuse-of-discretion standard
to ensure that “the district court committed no sig-
nificant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating
the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the
chosen sentence—including an explanation for any devia-
tion from the Guidelines range.” Gall v. United States, 552
U.S. 38, 51 (2007). We then examine the sentence for
reasonableness. United States v. Abbas, 560 F.3d 660, 666 (7th
Cir. 2009). Anderson, however, never objected to the
district court’s imposition of three years of supervised
release. Accordingly, we again apply a plain error test
and find Judge Randa’s discussion adequate.
To satisfy procedural justice requirements as set out in
Gall, a sentencing judge “must correctly understand
what the Guidelines recommend.” United States v.
Alldredge, 551 F.3d 645, 647 (7th Cir. 2008). Morever, even
where a district court makes a mistake, we will affirm
a reasonable sentence if the government proves that it
would not change on remand. United States v. Abbas, 560
F.3d 660, 667 (7th Cir. 2009); United States v. Jackson, 549
F.3d 1115, 1118 (7th Cir. 2008); United States v. White, 519
F.3d 342, 349 (7th Cir. 2008). Thus, while our precedent
implores a judge to announce the suggested guidelines
term of supervised release at the beginning of his § 3553(a)
analysis to show that he understands the recommenda-
tion, United States v. Gibbs, 578 F.3d 694, 695 (7th Cir.
No. 09-1612 13
2009), any deviation from that approach here is harm-
less. United States v. Anderson, 517 F.3d 953, 965 (7th
Cir. 2008) (“An error is harmless if it ‘did not affect the
district court’s selection of the sentence imposed.’ ”). In
any event, a party who is concerned about the length
or conditions of the supervised release portion of the
sentence should bring those concerns to the court’s at-
tention before the court imposes the sentence.
In Gibbs, we remanded the case for resentencing
because the district judge gave no indication that she
was aware that the Guidelines recommended five years
of supervised release when she imposed twice that term
on appellant. Accordingly, we were “unable to satisfy
ourselves that the district court correctly calculated the
advisory Guideline range.” 578 F.3d at 685-96. Here, by
contrast, the district court nailed the recommended
period of supervised release on the head. Together
with Judge Randa’s express mentions of the PSR in the
earlier part of the hearing, this fact makes it inappro-
priate for us to conclude that the district court did not
“understand” the guideline range. Cf. Gibbs, 578 F.3d at
695 (“The Government speculates that the district court
knew that the Guideline range was five years, but it
provides no evidence to support this assertion; at oral
argument, the Government could not identify a single
statement by the court reflecting its knowledge that the
advisory range was five years. Nowhere in the record
does it even establish that the district court adopted the
Guideline range in the presentencing report. Under the
circumstances, we are unable to satisfy ourselves that the
district court correctly calculated the advisory Guideline
14 No. 09-1612
range.”). Certainly, an explicit announcement of the
guidelines recommendation would have simplified the
issue before us. In this case, however, where a judge
has diligently assessed other parts of the PSR and
decided to impose a within-guidelines term of super-
vised release, silence did not affect appellant’s substan-
tive rights.
III. Conclusion
For the foregoing reasons, we A FFIRM the district
court’s judgment.
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