7th Circuit discusses supervised release appeals in child-porn case

The 7th Circuit Court of Appeals on Monday affirmed a man’s sentence after deciding to bring closure to a recurring issue faced in recent years regarding criminal defendants’ contentions about unconstitutionally vague conditions of supervised release.

A panel of the 7th Circuit affirmed Travis Barrett’s 97-month sentence and 10 years of supervised release for pleading guilty of possessing child pornography.   On appeal, Barrett contended that the district court violated his First Amendment rights by imposing a condition of supervised release that will prevent him from viewing any material depicting “sexually explicit conduct,” defined in 18 U.S.C. 2256(2) to include adult pornography.

But Barrett never raised that challenge at sentencing, the 7th Circuit concluded in its Monday decision, despite his having a full and fair chance to do so.

“Barrett confirmed at sentencing that he had not only received advance notice of all 34 proposed conditions of supervised release, but also discussed them with his counsel. He waived a public reading of each condition. From there the district court invited any objections, and Barrett responded with several. The objections resulted in a colloquy with the district court and ended with rulings on each challenged condition,” Judge Michael Scudder wrote.

The process worked as designed, the panel noted, but at no point did Barrett express reservation with or ask questions about Condition 31.

“In these circumstances, and separate and apart from the broad appellate waiver he agreed to in his plea agreement, Barrett runs headlong into the rule we announced in United States v. Flores (929 F.3d 443, 450 (7th Cir. 2019)): a waiver of an objection to a condition of supervised release occurs ‘when the defendant has notice of the proposed conditions, a meaningful opportunity to object, and she asserts (through counsel or directly) that she does not object to the proposed conditions, waives reading of those conditions and their justifications, challenges certain conditions but not the one(s) challenged on appeal, or otherwise evidences an intentional or strategic decision not to object.’ Every condition identified in Flores is present here, and that reality forecloses our review of Barrett’s belated challenge to Condition 31,” Scudder wrote.

“That Barrett contests Condition 31 in the name of the First Amendment is of no moment. Pointing to United States v. Adkins, 743 F.3d 176 (7th Cir. 2014), he argues that we have permitted challenges to conditions that touch on First Amendment rights, even where those challenges would be otherwise waived. Barrett misunderstands our holding. We do not read Adkins as creating a general, open-ended First Amendment exception to our waiver doctrine, and certainly not after our clarifying decision in Flores. We have since underscored that Flores ‘was not a mistaken fluke — it is controlling law,’” the panel held.

The 7th Circuit further noted that no mistake should be made about its holding in USA v. Travis Barrett, 19-2254.

“In no way are we saying that criminal defendants cannot challenge conditions of supervised release as unconstitutionally vague. They surely can (and do), and our doors remain open to considering such challenges if defendants take care to present the issue to the district court in the first instance,” it wrote.

In a final comment, the panel addressed Barrett’s assignment of fault to his counsel for failing to challenge Condition 31 before or during sentencing. The panel noted that it has “repeatedly reminded criminal defendants that collateral review, not direct appeal, is far and away the proper and best channel for raising an ineffective assistance of counsel claim.”

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