APPEAL
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE Hon. John A. Woodcock, Jr., U.S. District Judge
Jeffrey W. Langholtz, by appointment of the court, on brief
for appellant.
Renée M. Bunker, Assistant United States Attorney, and
Richard W. Murphy, Acting United States Attorney, on brief
for appellee.
Before
Torruella, Lynch, and Kayatta, Circuit Judges.
LYNCH,
Circuit Judge.
After
his conviction in 2012 for acting as an accessory after the
fact to an armed credit union robbery, Forrest Goodwin was
sentenced to forty-two months' imprisonment, to be
followed by three years of supervised release subject to
standard and special conditions. During the period of
supervised release, Goodwin repeatedly violated release
conditions pertaining to substance abuse. In 2016, he was
arrested, and the U.S. Probation Office filed a petition for
revocation of his supervised release. At the revocation
hearing, the district court sentenced Goodwin to ten
months' imprisonment, to be followed by two years of
supervised release subject to the same previously imposed
conditions. On appeal from the revocation sentence, Goodwin
challenges the term and the substance-abuse-related
conditions of his supervised release sentence. We affirm.
I.
In June
2012, Goodwin was found guilty of acting as an accessory
after the fact to an armed credit union robbery. There was
trial evidence that Goodwin used the robbery proceeds to
purchase drugs. Goodwin's presentence investigation
report ("PSR") for the robbery offense disclosed a
history of substance abuse and drug-related prior
convictions. Adopting the PSR's guidelines sentencing
range of thirty-seven to forty-six months, the district court
sentenced Goodwin to forty-two months' imprisonment, to
be followed by three years of supervision. Among other
conditions for release, the court mandated that Goodwin not
use or possess any controlled substance, alcohol, or other
intoxicant; that he participate in a substance-abuse
treatment program; and that he report to his probation
officer for testing.
Goodwin
was released from prison in December 2014, but arrested again
in May 2016 following his repeated violations of
supervised-release conditions. The Revocation Report
carefully described the many instances of Goodwin's
continued drug use, failure to report for testing, and
refusal to submit to further testing. The report also noted
that Goodwin made statements to his probation officer denying
that he had a drug-addiction problem. At the revocation
hearing, Goodwin admitted to all of these violations.
Goodwin's counsel explained, there is "no question
that [Goodwin] is addicted to opiate drugs"; "[i]f
given [a] second chance, [Goodwin] understands that he now
needs to work with, and not against, his probation
officer"; "[Goodwin] is in agreement with the
24-month term of supervised release" and
"understands that basically he needs to do all of his
supervised release over again"; and "really what
[Goodwin] has is a drug problem and he's trying to
address it."
The
district court remembered Goodwin's case "extremely
well, " having presided over Goodwin's trial and
sentencing hearing in 2012. In revoking Goodwin's
original supervised release, the court imposed a ten-month
prison term, to be followed by two years of supervised
release subject to the same set of previously imposed
conditions. The court also imposed a ninety-day period of
community confinement as a new special condition of release.
The court described post-revocation supervised release as a
final "opportunity for change" -- Goodwin's
last chance to "cooperate with counseling and
treatment" and "conquer [his] drug problem."
Goodwin
now challenges this new term of supervision and the
substance-abuse-related requirements. Goodwin argues that the
district court committed plain error because (1) supervised
release will likely fail, given Goodwin's ongoing
struggles with substance abuse; and, in any event, (2) the
release conditions are not sufficiently related to
Goodwin's original robbery offense.
The
government disputes that Goodwin's sentence was in error,
but also argues as a threshold matter that Goodwin waived his
challenges when his counsel stated at the revocation hearing
that Goodwin "agree[d] with the 24-month term of
supervised release." Goodwin maintains that he
forfeited, but did not waive, his objections.
II.
We
ordinarily review a district court's revocation sentence,
including any conditions of supervised release, for abuse of
discretion. United States v.Marino, 833
F.3d 1, 10 (1st Cir. 2016). If the defendant forfeited his
claims, we review only for plain error. United States
v.York, 357 F.3d 14, 19 (1st Cir. 2004). If
the defendant instead affirmatively assented to parts of his
sentence, any objections thereto are waived and cannot be
resurrected on appeal. United States v.Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002).
Goodwin has conceded forfeiture but he contests the
government's assertion of waiver. We need not address ...