Sentencing objections waived by two Seventh Circuit opinions.

• Author: Ziemer, David

Byline: David Ziemer

Two Seventh Circuit opinions issued Oct. 19 discuss the distinction between waiving and forfeiting objections. However, the court's methodology leaves much to be desired.

In the first case, Damien Brodie was convicted after trial of possession of cocaine and marijuana with intent to distribute. The police conducted two separate searches, but Brodie filed a pre-trial motion to suppress only the fruits of the second search.

At sentencing, he made only two objections: to an offense-level increase for using a firearm; and to an offense-level increase for perjury.

The district court denied them both, and asked if there were any other objections. Brodie an-swered, Not really. The court then sentenced Brodie to 240 months imprisonment.

Objections to Sentence

On appeal, Brodie raised two new objections to the sentence: use of the guidelines' 100:1 crack-to-cocaine-powder ratio; and the use of prior criminal convictions that were not proven beyond a reasonable doubt to a jury. He also contended that the first search was unlawful.

The court of appeals affirmed, in a decision by Judge Michael S. Kanne.

The court began with a short review of the difference between forfeiture and waiver.

Waiver occurs when a defendant intentionally relinquishes a known right, precluding appellate review. Forfeiture occurs when a defendant negligently fails to timely assert a right, allowing appellate review, but only for plain error.

Addressing the objection to the search, the court declined to consider the merits. The court acknowledged that there was no evidence in the record of an intentional relinquishment of the motion to suppress, and thus, he forfeited, rather than waived the issue. However, because Brodie offered no good cause for not filing a suppression motion in the district court, the court declined to consider the merits.

Turning to the sentencing issues, the court concluded that Brodie waived, rather than forfeited them.

The court wrote, Brodie 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 (cites omitted).

Waiver Versus Forfeiture

The court acknowledged that, in U.S. v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005), it held that a lawyer's statement at sentencing that the defendant does not object to anything in the presentence report does not inevitably constitute a waiver.

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