Such relief was granted by the district court, and Harris was allowed to directly appeal his sentence to this court. United States v. Harris, 230 F.3d 1054 (7th Cir. 2000), cert. denied, 532 U.S. 988, 121 S.Ct. 1640, 149 L.Ed.2d 499 (2001) (" Harris I"). In that direct appeal, we made three findings.
In spite of Walton's wishes, we cannot reach the merits of his argument because he waived the argument during the sentencing hearing. Waiver occurs when a defendant "intentionally relinquishes or abandons a known right." See United States v. Harris, 230 F.3d 1054, 1058 (7th Cir. 2000). A waiver is "the manifestation of an intentional choice not to assert [a] right," distinguishing it from forfeiture, which is an accidental or negligent omission (or "an apparently inadvertent failure to assert a right in a timely fashion").
Even so, other circuits that have addressed this issue have concluded that the scope of the safety-valve's “no firearms” condition is narrower than the firearms enhancement and does not impute responsibility for the acts of coconspirators. See United States v. Delgado–Paz, 506 F.3d 652, 656 (8th Cir.2007) ; United States v. Figueroa–Encarnación, 343 F.3d 23, 34 (1st Cir.2003) ; United States v. Pena–Sarabia, 297 F.3d 983, 989 (10th Cir.2002) ; United States v. Clavijo, 165 F.3d 1341, 1343–44 (11th Cir.1999) (per curiam); United States v. Wilson, 114 F.3d 429, 432 (4th Cir.1997) ; In re Sealed Case, 105 F.3d 1460, 1462 (D.C.Cir.1997) ; United States v. Wilson, 105 F.3d 219, 222 (5th Cir.1997) (per curiam); see also United States v. Harris, 230 F.3d 1054, 1061 (7th Cir.2000) (Ripple, J., dissenting) (summarizing the arguments in favor of distinguishing the scope of responsibility associated with the firearm enhancement and safety valve).As we've noted, this is a question of first impression in our circuit.
The Government argues that Spells has waived this claim, thus precluding review by this Court, while Spells contends that the issue has only been forfeited and is therefore still subject to review for plain error. See United States v. Harris, 230 F.3d 1054, 1058-59 (7th Cir. 2000) ("We review forfeited issues for plain error, . . . but we cannot review waived issues at all because a valid waiver leaves no error for us to correct on appeal."). Whether this claim has been waived or forfeited depends upon Defendant's intent before the lower court. "Waiver occurs when a defendant intentionally relinquishes a known right," while forfeiture, on the other hand, "comes about through neglect," and occurs when one fails to assert their rights in a timely manner.
"Waiver and forfeiture are related doctrines; waiver occurs when a defendant intentionally relinquishes or abandons a known right, whereas forfeiture occurs when a defendant fails to timely assert his rights." United States v. Harris, 230 F.3d 1054, 1058 (7th Cir. 2000) (citing United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000); United States v. Olano, 507 U.S. 725, 730-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). "A forfeiture is basically an oversight; a waiver is a deliberate decision not to present a ground for relief that might be available in the law."
USSG § 2D1.1, cmt. n. 3. The government, therefore, must first prove by a preponderance of the evidence that the defendant possessed the firearm. United States v. Thomas, 294 F.3d 899, 905-06 (7th Cir. 2002); United States v. Harris, 230 F.3d 1054, 1057 (7th Cir. 2000). "Actual possession of the firearm need not be established in order to trigger the enhancement.
Waiver operates to extinguish the claim of error and precludes appellate review. Id.; United States v. Harris, 230 F.3d 1054, 1058-59 (7th Cir. 2000) ("[W]e cannot review waived issues at all because a valid waiver leaves no error for us to correct on appeal.") (citations omitted). When asked whether he had any dispute with the court's conclusion that his offense be categorized as a level 13, Martinez stated that he did not. By such statement, Martinez plainly communicated an intention to relinquish and abandon any arguments related to his offense level calculation.
Such a failure to object, in this instance, involves forfeiture and not waiver. Although waiver and forfeiture are related doctrines, waiver occurs when a defendant intentionally relinquishes or abandons a known right, whereas forfeiture occurs when a defendant fails to timely assert his rights. See United States v. Harris, 230 F.3d 1054, 1058 (7th Cir. 2000); United States v. Staples, 202 F.3d 992, 995 (7th Cir. 2000); Perez, 43 F.3d at 1135. Forfeiture of a right does not extinguish the right to raise the issue on appeal. See Harris, 230 F.3d at 1058.
This enhancement "reflects the increased danger of violence when drug traffickers possess weapons." U.S.S.G. § 2D1.1 app. n.11. It applies when a dangerous weapon is possessed, "unless it is clearly improbable that the weapon was connected with the offense." Id.; see, e.g., United States v. Harris, 230 F.3d 1054, 1057 (7th Cir. 2000). The government must demonstrate that Mr. Wigfall possessed the firearm—actually or constructively—then he must prove that it was clearly improbable that the firearm was used in connection with the drug offense.
No. 00-9009. HARRIS v. UNITED STATES. C.A. 7th Cir. Certiorari denied. Reported below: 230 F.3d 1054. No. 00-9010. FAY v. UNITED STATES. C.A. 5th Cir. Certiorari denied.