A defendant waives his right to an argument only when he intentionally chooses not to make that argument. Waiver precludes appellate review and extinguishes error. When a defense lawyer does not make an argument due to oversight or negligence, the defendant forfeits that right, and the defendant’s appeal of that issue is subject to plain error review. In United States v. Scott, the Seventh Circuit analyzed whether a criminal defendant had waived his rights to allocute and challenge his sentence of supervised release imposed at a revocation hearing. The district court judge imposed a sentence of thirty-six months supervised release to Scott at his revocation hearing. The judge asked if Scott had anything to say and his attorney responded that they had no objection to the sentence of supervised release. Scott then attempted to speak and was silenced by his attorney who, after speaking with Scott, advised the court that Scott had nothing to say. The Seventh Circuit affirmed the district court’s finding that Scott had waived his right to allocute and could no longer challenge the sentence imposed to him at his revocation hearing. However, Chief Judge Wood dissented, finding that the defendant did not waive his right to allocute or challenge his sentence. The dissent would have remanded to the district court for a new sentencing hearing where the proper sentencing guidelines calculations would be performed prior to the imposition of a new sentence This Note argues that the court ignored its previous decisions requiring that waiver be intentional when finding that Scott waived his right to allocute or challenge his sentence. Further, it argues that while purporting to avoid interference with the attorney-client relationship, the majority ignored facts in the record indicating that Scott disagreed with his first attorney’s decisions and that there was no tactical reason to not object to the thirty-six months of supervised release.
This Note concludes by finding that the line-by-line analysis of the revocation hearing performed by the dissent was more consistent with circuit precedent and the court should have remanded to the district court for a sentencing guidelines calculation to be performed and Scott given the opportunity to allocute.
Do an Attorney’s Actions Constitute His Client’s Intent?: The Seventh Circuit’s Broadening of the Principles of Waive,
Seventh Circuit Rev.
Available at: https://scholarship.kentlaw.iit.edu/seventhcircuitreview/vol14/iss1/7