In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3635
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JOHN ALAN LEWIS,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13‐CR‐00079‐001 — Jane E. Magnus‐Stinson, Judge.
____________________
ARGUED JUNE 10, 2015 — DECIDED MAY 24, 2016
____________________
Before MANION, WILLIAMS, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. A jury found appellant John A.
Lewis guilty of five federal sex offenses. The district court sen‐
tenced Lewis, who is 66 years old and in poor health, to the
statutory mandatory minimum sentence of 35 years in prison.
Lewis has appealed, but he does not challenge either his con‐
victions or the prison term. The district judge, while recogniz‐
ing that the chances Lewis will survive his prison sentence are
2 No. 14‐3635
low, also included in his sentence a life term of supervised re‐
lease. The only issues before us concern the supervised release
portion of his sentence. (Lewis also raised a minor forfeiture
issue, but that has been resolved by agreement; we do not ad‐
dress it.)
Lewis raised no objections in the district court to any as‐
pect of the supervised release term and conditions. Repre‐
sented by new counsel on appeal, however, Lewis argues that
the court’s findings and explanations were not sufficient and
that we must vacate the sentence and remand for resentenc‐
ing, or at least for further consideration of supervised release.
See generally, e.g., United States v. Kappes, 782 F.3d 828 (7th Cir.
2015); United States v. Thompson, 777 F.3d 368 (7th Cir. 2015);
United States v. Siegel, 753 F.3d 705 (7th Cir. 2014).
We affirm the judgment of the district court. Sound appli‐
cation of principles of waiver and forfeiture convinces us
there is no need to send this case back to the district court. The
defense had ample advance notice of the terms of proposed
release that were contemplated and ultimately imposed. Be‐
fore sentence was actually imposed, the court expressly in‐
vited objections and requests for further findings or elabora‐
tion. The defense expressly declined the invitation. That was
waiver. Even if it were deemed only forfeiture, there was no
plain error requiring remand.
I. The Crimes
Because the issues on appeal are narrow, a brief summary
of Lewis’s crimes will suffice. In 2012 police in Indianapolis
arrested another man who had first obtained sexually explicit
photographs of a real girl and then pretended on‐line to be a
fourteen‐year‐old prostitute named Becky. “Becky” had on‐
No. 14‐3635 3
line chats with Lewis and sent him the sexually explicit im‐
ages of the real girl. During the chats, Lewis told “Becky” he
wanted to record a video of her engaging in what federal law
calls sexually explicit conduct.
After police arrested the other man, they took over Becky’s
identity and continued communicating with Lewis. He of‐
fered repeatedly to travel to Indiana to meet Becky, telling her
that he wanted to have sex with her in a hotel and then take
her to live with him in Ohio. He said he would bring cameras
with him to take videos and photographs of their sex.
In September 2012, Lewis drove to Indiana to meet
“Becky.” Police arrested him as he drove past the apartment
where he believed she lived. A search of his car turned up a
list of motels in the area, a digital camera, a tripod, and digital
storage media containing more than 100 sexually explicit im‐
ages of “Becky” and instructions for photographing sex
scenes.
Lewis was charged with attempted sexual exploitation of
a minor (18 U.S.C. § 2251(a)); traveling interstate for the pur‐
pose of having sex with a minor (§ 2243(b)); transporting child
pornography (§ 2252(a)(1)); possessing child pornography
(§ 2252(a)(4)(B)); and committing a felony sex offense involv‐
ing a minor while a registered sex offender (§ 2260A). He had
prior state court convictions for attempted sexual conduct
with a minor and possession of child pornography. He was a
registered sex offender. At the time of his arrest, he was also
on probation for having failed to update his sex‐offender reg‐
istration. A jury convicted Lewis on all charges.
4 No. 14‐3635
II. The Sentencing
Lewis faced a mandatory statutory minimum sentence of
35 years in prison, and that was his sentence. The judge rec‐
ognized this was likely a de facto life sentence. Even with the
maximum available good‐time credit, Lewis will be 94 years
old when he first becomes eligible for release, well beyond the
average life expectancy for men his age. Lewis himself is al‐
ready in poor health. He is quite obese, has been diagnosed
with a number of coronary diseases including congestive
heart failure, and had triple‐bypass heart surgery several
years ago.
Lewis also faced a statutory minimum term of five years
supervised release. 18 U.S.C. § 3583(k). The judge sentenced
Lewis to a life term of supervised release. The judge imposed
the thirteen standard conditions of supervised release spelled
out in the presentence report, plus nine conditions the proba‐
tion officer had also recommended in the presentence report.
Lewis raised no objections to the sentence in the district
court, but on appeal, he argues that the judge did not explain
why she thought a life term of supervised release was appro‐
priate, that she failed to explain her reasons for imposing
many conditions of supervised release, and that several of the
conditions have various substantive flaws.
III. Recent Case Law on Supervised Release
Before 2014, our court applied standards of waiver and
forfeiture to issues concerning supervised release. See, e.g.,
United States v. Silvious, 512 F.3d 364, 371 (7th Cir. 2008) (over‐
broad conditions of supervised release were not plain errors
requiring correction despite lack of objection); United States v.
No. 14‐3635 5
McKissic, 428 F.3d 719, 726 (7th Cir. 2005) (finding no plain er‐
ror where supervised release condition was imposed without
sufficient notice); United States v. Tejada, 476 F.3d 471, 475–76
(7th Cir. 2007) (finding no plain error in supervised release
condition for drug testing).
In a series of opinions beginning in 2014, our court has
taken supervised release out of the shadows and focused
spotlights upon its substance and procedures. See Kappes, 782
F.3d at 835 n.1 (collecting cases); Thompson, 777 F.3d 368;
Siegel, 753 F.3d 705. In that line of cases, we have required
more from district judges by way of explanations of super‐
vised release terms and conditions than had been customary.
We have also offered district judges a great deal of advice in
the form of suggested best practices. In that same line of cases,
we have not always followed our earlier precedents regarding
waiver and plain error. Before addressing Lewis’s claims on
appeal and the waiver and forfeiture issues, we lay out the
relevant landscape as shaped by our recent cases.
First, supervised release is an important part of a federal
criminal sentence. It is mandated in many sentences and is
imposed in the vast majority of sentences for more than one
year in prison. Kappes, 782 F.3d at 837 (supervised release im‐
posed in 99% of cases where it is not mandatory but prison
sentence exceeds one year). When it is managed well, super‐
vised release can serve the complementary goals of protecting
the public and rehabilitating an offender who is returning to
free society. Supervised release should not be an afterthought;
it deserves careful and thoughtful attention from the sentenc‐
ing judge. Thompson, 777 F.3d at 373–75.
Second, supervised release needs to be a flexible tool, and
the governing statute treats it that way. The statute provides
6 No. 14‐3635
for a few mandatory conditions of supervised release, and it
authorizes courts to impose additional standard and special
conditions tailored to a particular case. 18 U.S.C. § 3583(d).
Conditions of supervised release announced at the begin‐
ning of a prison sentence will not take effect until the end of
the prison sentence, often many years later. In addition, a de‐
fendant’s supervised release may take place in a district other
than the sentencing court. Unlike other sentence terms, there‐
fore, the duration and conditions of supervised release may
be modified by a court “at any time prior to the expiration or
termination of the term.” § 3583(e).
This special flexibility is a key feature of supervised re‐
lease that shapes our approach to challenges to conditions of
supervised release. For example, we held in United States v.
Neal, 810 F.3d 512, 514 (7th Cir. 2016), that a defendant could
challenge conditions of release on substantive (not proce‐
dural) grounds during the term of supervised release itself.
At the same time, we also declined to take up, for the first time
on appeal, challenges to conditions of supervised release that
the defendant had chosen not to challenge in the district court.
Id. at 521. Those were matters that needed to be raised in the
district court in the first instance.
Next, as with any terms of a sentence, the sentencing judge
must be able to explain the legal basis for a condition and how
it will serve the statutory purposes of supervised release.
Kappes, 782 F.3d at 837; Thompson, 777 F.3d at 373. The re‐
quired extent of those findings and explanations can be a sub‐
ject of endless debate, however. That problem is at the core of
Lewis’s arguments on the merits in this appeal.
No. 14‐3635 7
In considering this and other supervised release appeals,
we remember that our criminal justice system is based on ad‐
versarial principles. The people who work in it—judges, de‐
fense lawyers, prosecutors, probation officers, and others—
are busy. They do not need to waste time treating matters that
are not disputed as if they were. To be sure, judges have duties
to oversee even matters where the adversaries agree, see
Thompson, 777 F.3d at 374, but we shape our appellate deci‐
sions to avoid forcing busy actors to waste their time on mat‐
ters that are not disputed, and not disputed for good reasons.
We also keep in mind the respective roles of the district
courts and the court of appeals with regard to sentencing in
general and supervised release in particular. Sentencing hap‐
pens in the district courts, and conditions of supervised re‐
lease require the exercise of the district court’s judgment and
discretion. The appellate court’s role is to review parties’
claims that district courts have made legal or factual errors,
and to provide a remedy where such errors have harmed the
interests of a party. Appellate review is ordinarily limited to
matters raised in the district court. There are exceptions, of
course, such as matters involving subject matter jurisdiction,
or “plain errors,” which are limited to those that are plain,
were not intentionally waived, affect substantial rights, and
seriously affect the fairness, integrity, or public reputation of
judicial proceedings. Molina‐Martinez v. United States, 578 U.S.
—, 136 S. Ct. 1338, 1343 (2016); United States v. Olano, 507 U.S.
725, 732 (1993). But that is a high standard, and as we pointed
out in Silvious and Neal, a district court can fix a problem with
supervised release conditions at any time, which should make
it harder to show plain error in such conditions that must be
corrected immediately, despite the absence of objection. See
8 No. 14‐3635
Silvious, 512 F.3d at 371, and Neal, 810 F.3d at 514, both citing
18 U.S.C. § 3583(e)(2).
We also keep in mind the costs of remands for resentenc‐
ing, especially the human costs imposed on victims. In cases
like this, where children have been victims of terrible abuse
and where even one sentencing hearing can be traumatic, that
concern is important. Where a significant and prejudicial er‐
ror requires remand and resentencing, the trauma and other
costs of resentencing may be necessary. But we should keep
those costs in mind in any quest for better findings or im‐
proved procedures, especially where the defense had ample
opportunity to address the issues at the time of sentencing
and raised no objection.
The foundation for these limits on appellate review is that
a district judge needs to ensure that parties have a fair and
genuine opportunity to raise objections in the district court.
In the context of supervised release, that means giving the
parties advance notice of contemplated terms of supervised
release or a fair opportunity to respond to unexpected devel‐
opments. E.g., Kappes, 782 F.3d at 842–43. In addition, it is im‐
portant for the district court to ensure that a sentence is not
finally imposed until the parties have been fully heard. Fed‐
eral Rule of Criminal Procedure 51(a) makes clear there is no
need for a party to state an “exception” to a court ruling that
has already been made. See, e.g., United States v. Shannon, 743
F.3d 496, 499–500 (7th Cir. 2014) (no waiver or forfeiture
where defendant failed to object to condition first raised by
district judge at hearing).
An essential consideration in virtually any appeal is
whether the alleged error by the district court caused some
sort of harm or prejudice to the appellant. See Fed. R. Crim. P.
No. 14‐3635 9
52. Appellate judges are in the business of second‐guessing
district judges, and with careful scrutiny of most district court
records, we are capable of finding room for improvement.
Our central job, however, is to respond to the parties’ claims
of harmful error, not to go looking for errors or to invite par‐
ties to raise for the first time alleged errors that could have
been presented to the district court and corrected there. If we
forget our role, we will invite numerous avoidable and often
pointless appeals and remands by trying to fix what is not ac‐
tually broken. There are signs that our recent decisions on su‐
pervised release have invited just such appeals.
Conditions of supervised release, especially written years
earlier, will inevitably have some degree of ambiguity and
room for interpretation. Consider, for example, the difficulty
a district judge would have had in 1990 crafting appropriate
terms for restrictions on an offender’s use of a computer, to
take effect in the world of 2015 with mobile devices and much
more widespread use of the internet in a wide array of jobs.
Now consider the challenge a district judge faces today craft‐
ing such a condition likely to take effect in 2040. If we try to
remove all ambiguity on the front end of the process, we set
ourselves and our colleagues in the district courts an endless
task.
IV. The Waiver and Forfeiture Here
With these considerations in mind, we turn to the issues
raised by Lewis in this appeal. He contends first that the court
simply failed to make findings justifying the lifetime term of
supervised release and showing appropriate consideration of
the factors set forth in 18 U.S.C. § 3583(d) and § 3553(a). He
also objects that some of the standard and special conditions
of supervised release are too vague or otherwise burdensome
10 No. 14‐3635
and that the district court did not sufficiently explain its rea‐
sons for imposing them. For example, he objects to terms re‐
quiring disclosure of financial information, submitting to
searches, restricting use of computer devices, complying with
terms of sex offender treatment programs, submitting to poly‐
graphs, banning possession of adult pornography and erot‐
ica, prohibiting unsupervised contract with children without
advance approval, and requiring employment and support of
dependents.
There were no surprises in the sentencing hearing related
to supervised release. That fact distinguishes this case from
cases in which we have declined to find waiver of objections
to unexpected conditions of supervised release. See, e.g.,
United States v. Hinds, 770 F.3d 658, 665 (7th Cir. 2014); United
States v. Farmer, 755 F.3d 849, 853 (7th Cir. 2014). In this case,
the presentence report was provided to Mr. Lewis and his
counsel weeks before sentencing. It included all the terms of
supervised release that were actually imposed. At the sen‐
tencing hearing, the court gave both sides ample opportunity
to be heard on all aspects of the decision. The defendant’s
principal concern was whether the prison term of the sentence
would be greater than the statutory mandatory minimum.
(On that issue, he succeeded.)
The district court did not say much about its reasons for
ordering a life term of supervised release as opposed to the
mandatory minimum five years or some other term of years.
It was clear from the entirety of the sentencing hearing,
though, that Mr. Lewis is a repeat offender who has been very
resistant to court supervision in the past. The court provided
some explanation for the terms of supervised release that are
challenged on appeal, all driven quite obviously by the nature
No. 14‐3635 11
of the defendant’s crimes and the desire to protect the public
from further offenses.
After providing those explanations, the court asked:
“Counsel, do you have any legal objection to the sentence I
have proposed or request any further elaboration of my rea‐
sons under Section 3553(a) both as to the term of imprison‐
ment or the conditions of supervised release?” Both the pros‐
ecutor and the defense lawyer said “no.” The court then said
it would order sentence imposed as stated. App. 25.
We assume for purposes of this appeal that if the defend‐
ant had objected to some or all of these conditions or to the
adequacy of the court’s findings, the district court should
have modified the conditions or at least provided further ex‐
planations. But our focus here is on the issues of waiver and
forfeiture.
The sentencing in the district court is the main event. The
parties prepare and identify the issues they wish to address.
As we were told at oral argument, if the defense had raised
objections to the proposed terms of supervised release or to
the adequacy of the court’s findings, the government was pre‐
pared to offer substantial evidence justifying those proposed
terms and arguments to explain why they were appropriate.
When the defense did not raise those objections, the govern‐
ment saw no need to waste everyone’s time by offering evi‐
dence and arguments on matters that were not in dispute. If
we were to remand to fill in those gaps two years after the fact,
the lawyers, government agents, and other witnesses would
need to be reassembled and their memories refreshed. None
of that is necessary or even appropriate in light of the waiver
at the time of the original sentencing.
12 No. 14‐3635
The judge’s inquiry here was not a vague “anything else?”
Cf. United States v. Speed, 811 F.3d 854, 857–58 (7th Cir. 2016)
(finding no waiver where judge asked defendants whether
there was “anything unclear or confusing” and they said no).
The judge asked specifically about the extent of her explana‐
tions of the sentence in general and supervised release in par‐
ticular. Counsel raised no objections. We find that was suffi‐
cient to establish a waiver of the objections being raised for
the first time in this appeal.
The district court followed here a procedure that tracks
one we recommended to ensure that district courts address
sufficiently a defendant’s principal arguments in mitigation.
After seeing many appeals arguing that district judges did not
address mitigation arguments sufficiently, we encouraged
district judges to ask defense counsel at sentencing whether
they were satisfied that the court had addressed their argu‐
ments sufficiently. United States v. Garcia‐Segura, 717 F.3d 566,
569 (7th Cir. 2013). When a district judge asks that question
and is told that the defense is satisfied, the defense has waived
a later appellate argument that the court failed to address the
mitigation arguments sufficiently. E.g., United States v. Donelli,
747 F.3d 936, 941 (7th Cir. 2014). The same logic applies here.
Further, even if the judge’s question and lawyers’ re‐
sponses were not enough to establish an intentional relin‐
quishment of a known right needed for true waiver, the fail‐
ure to object in response to the invitation would still amount
to forfeiture of the arguments Lewis makes on appeal. Where
the issue is the sufficiency of an explanation or findings, a
meager explanation of an otherwise permissible decision does
not call into question the fairness, integrity, or public reputa‐
No. 14‐3635 13
tion of the proceeding. Where the issue is the substantive con‐
tent or clarity or ambiguity of a supervised release term that
will not take effect for many years and that can be revised at
any time, we also see no threat to the fairness, integrity, or
public reputation of the proceedings. See 18 U.S.C.
§ 3583(e)(2); United States v. Neal, 810 F.3d at 514.
Finally, Lewis argues that there was no waiver because the
court had already made its decision, so that under Rule 51(a)
no “exception” was necessary. We disagree. The court set
forth the sentence it planned to impose and its reasons for do‐
ing so. The court then asked counsel whether they had objec‐
tions “to the sentence I have proposed” or whether they
sought further explanations. Only after both lawyers said
“no” did the court say it would order the sentence imposed
as stated. The defense had a fair opportunity to raise in the
district court all of the issues that have been raised on appeal,
and chose not to do so.
The judgment of the district court is AFFIRMED.