from the United States District Court for the District of
Kansas (D.C. No. 6:17-CR-10154-JWB-1)
Sanderford, Assistant Federal Public Defender (Virginia L.
Grady, Federal Public Defender, with him on the briefs),
Denver, Colorado, for Defendant-Appellant.
A. Brown, Assistant United States Attorney (Stephen R.
McAllister, United States Attorney, with him on the brief),
Topeka Kansas, for Plaintiff-Appellee.
MATHESON, SEYMOUR, and BACHARACH, Circuit Judges.
Seymour, Circuit Judge.
B. Malone was convicted on two counts of distributing
methamphetamine on July 12, 2018 and was sentenced to 151
months' custody followed by five years of supervised
release. At sentencing, the district court imposed all the
various conditions of supervised release set forth in the
Presentence Investigation Report ("PSR"), including
a special condition requiring Mr. Malone to undergo mental
health treatment. Contained within this special condition was
the mandate for Mr. Malone to "take prescribed
medication as directed" by mental health staff or a
treating physician, the requirement that is the subject of
this appeal. Rec., vol. III at 28. Mr. Malone did not object
to this proposed condition in either his written objections
to the PSR or at sentencing. He argues on appeal that the
district court's failure to make particularized findings
to support this condition was plain error compelling
reversal. We agree and accordingly reverse.
12, 2018, Mr. Malone was convicted after a jury trial on two
counts of distributing methamphetamine. The PSR prepared by
the United States Probation Office set forth various
sentencing recommendations. Among these was a special
condition of supervised release requiring Mr. Malone to
undergo mental health treatment and, correspondingly, to
"take prescribed medication as directed."
sentencing, the district court announced its intention
"to impose the mandatory and special conditions of
supervision set forth" in the PSR, rec., vol. II at 335,
which included the aforementioned condition concerning
medication. Although the court stated that the "[n]ature
of the offense and history outlined in the presentence report
warrant the conditions for participation in the cognitive
behavioral programs; participation in substance abuse and
mental health counseling; and allowing searches of
defendant's person and property," id., it
made no findings to support either the imposition of the
mental health condition or its embedded medication directive.
counsel did not object to either the condition or the
court's failure to make supporting findings, responding
in the negative when the court asked if there were any
objections. Mr. Malone now contends that the court's
failure to make particularized findings was plain error
requiring reversal. The government counters that Mr. Malone
is not entitled to appellate review because he waived this
issue in the district court and, alternatively, that the
condition can be construed narrowly to avoid reversal under
plain error review.
is no question that Mr. Malone did not make a timely
objection. Ordinarily, when an error claimed on appeal was
not presented below, we apply plain error review and will
reverse "only if there is (1) error, (2) that is plain,
which (3) affects substantial rights, and which (4) seriously
affects the fairness, integrity, or public reputation of
judicial proceedings." United States v. Teague,
443 F.3d 1310, 1314 (10th Cir. 2006) (citation and quotation
mark omitted). However, "not every unpreserved claim of
error is entitled to plain error review." Id.
"[A] party that has forfeited a right by
failing to make a proper objection may obtain relief for
plain error; but a party that has waived a right is
not entitled to appellate relief." United
States v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir.
2009) (emphasis in original) (citation omitted). Waiver
occurs when a party deliberately considers an issue and makes
an intentional decision to forgo it. While forfeiture comes
about through neglect, waiver is accomplished by intent.
Id. Thus, the applicable standard of review here
turns on whether Mr. Malone affirmatively waived review of
this issue or merely forfeited it.
government argues that Mr. Malone's situation was
"tantamount to the classic waiver situation where a
party actually identified the issue, deliberately considered
it, and then affirmatively acted in a manner that abandoned
any claim on the issue." Aple. Br. at 10 (quoting
Cruz-Rodriguez, 570 F.3d at 1185); see also
United States v. Carrasco-Salazar, 494 F.3d 1270, 1273
(10th Cir. 2007) ("There can be no clearer intentional
relinquishment or abandonment of a known right, than when the
court brings the defendant's prior objection to his
attention, asks whether it has been resolved, and the
defendant affirmatively indicates that it has.")
(internal citations and quotation marks omitted). But Mr.
Malone correctly counters that the present case can be more
closely analogized to our decision in United States v.
Figueroa-Labrada, 720 F.3d 1258 (10th Cir. 2013). As in
Figueroa-Labrada, defense counsel here did not
object to the PSR even when explicitly given the opportunity
to do so. But he did nothing to indicate that he
affirmatively wished to waive the district court's
requirement to ...