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United States v. Lewis

United States Court of Appeals, Seventh Circuit

May 24, 2016

JOHN ALAN LEWIS, Defendant-Appellant

         Argued June 10, 2015,.

          Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:13-CR-00079-001 -- Jane E. Magnus-Stinson, Judge.

         For UNITED STATES OF AMERICA, Plaintiff - Appellee: Steven D. DeBrota, Attorney, Bob Wood, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, OFFICE OF THE UNITED STATES ATTORNEY, Indianapolis, IN; Amy Elizabeth Larson, DEPARTMENT OF JUSTICE, Washington, DC.

         For JOHN ALAN LEWIS, Defendant - Appellant: Daniel J. Hillis, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Springfield, IL; Thomas W. Patton, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Peoria, IL.

         Before MANION, WILLIAMS, and HAMILTON, Circuit Judges.


         Hamilton, Circuit Judge.

         A jury found appellant John A. Lewis guilty of five federal sex offenses. The district court sentenced Lewis, who is 66 years old and in poor health, to the statutory mandatory minimum sentence of 35 years in prison. Lewis has appealed, but he does not challenge either his convictions or the prison term. The district judge, while recognizing that the chances Lewis will survive his prison sentence are low, also included in his sentence a life term of supervised release. The only issues before us concern the supervised release portion of his sentence. (Lewis also raised a minor forfeiture issue, but that has been resolved by agreement; we do not address it.)

         Lewis raised no objections in the district court to any aspect of the supervised release term and conditions. Represented by new counsel on appeal, however, Lewis argues that the court's findings and explanations were not sufficient and that we must vacate the sentence and remand for resentencing, or at least for further consideration of supervised release. See generally, e.g., United States v. Kappes, 782 F.3d 828 (7th Cir. 2015); United States v. Thompson, 777 F.3d 368 (7th Cir. 2015); United States v. Siegel, 753 F.3d 705 (7th Cir. 2014).

         We affirm the judgment of the district court. Sound application of principles of waiver and forfeiture convinces us there is no need to send this case back to the district court. The defense had ample advance notice of the terms of proposed release that were contemplated and ultimately imposed. Before sentence was actually imposed, the court expressly invited objections and requests for further findings or elaboration. The defense expressly declined the invitation. That was waiver. Even if it were deemed only forfeiture, there was no plain error requiring remand.

         I. The Crimes

         Because the issues on appeal are narrow, a brief summary of Lewis's crimes will suffice. In 2012 police in Indianapolis arrested another man who had first obtained sexually explicit photographs of a real girl and then pretended on-line to be a fourteen-year-old prostitute named Becky. " Becky" had on-line chats with Lewis and sent him the sexually explicit images of the real girl. During the chats, Lewis told " Becky" he wanted to record a video of her engaging in what federal law calls sexually explicit conduct.

         After police arrested the other man, they took over Becky's identity and continued communicating with Lewis. He offered repeatedly to travel to Indiana to meet Becky, telling her that he wanted to have sex with her in a hotel and then take her to live with him in Ohio. He said he would bring cameras with him to take videos and photographs of their sex.

         In September 2012, Lewis drove to Indiana to meet " Becky." Police arrested him as he drove past the apartment where he believed she lived. A search of his car turned up a list of motels in the area, a digital camera, a tripod, and digital storage media containing more than 100 sexually explicit images of " Becky" and instructions for photographing sex scenes.

         Lewis was charged with attempted sexual exploitation of a minor (18 U.S.C. § 2251(a)); traveling interstate for the purpose of having sex with a minor (§ 2243(b)); transporting child pornography (§ 2252(a)(1)); possessing child pornography (§ 2252(a)(4)(B)); and committing a felony sex offense involving a minor while a registered sex offender (§ 2260A). He had prior state court convictions for attempted sexual conduct with a minor and possession of child pornography. He was a registered sex offender. At the ...

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