In United States v. Dupue, --- F.3d ---, No. 15-10553 (9th Cir. 2019), the Court confirmed the distinction between waiver of an issue, and mere forfeiture: a defendant waives his rights, which precludes plain error review, only when there is evidence that
he knew of his rights at the time and nonetheless
relinquished them.
The Court explained, "a failure to object or an uninformed
representation to the court is not alone sufficient evidence of
waiver. Rather, there must be evidence that the defendant
was aware of the right he was relinquishing and relinquished
it anyway. Absent such evidence, failure to preserve a
claim constitutes forfeiture subject to plain error review."
Applying that rule: "Although Depue did object to the dates of incarceration
in the PSR, his doing so is not evidence that he was aware of
and considered objecting to other alleged errors, but “for
some tactical or other reason, rejected the idea.” Perez,
116 F.3d at 845. The relevant question is whether Depue
knew the substantive legal rules underlying the particular
challenges to the Guidelines calculation he raises on appeal, and knew that the district court’s calculation violated those
rules."
"The fact that Depue knew
generally that he could object if he recognized a mistake, or
that he recognized and raised other errors, does not mean that
he waived the right to challenge the specific alleged errors
he raises on appeal."
"[W]e underscore that the distinction
between waiver and forfeiture is particularly important in the
sentencing context. By requiring evidence that a waiver is
knowing, and therefore permitting plain error review when
such evidence is absent, we preserve our ability to review
sentencing errors even if the parties were not diligent or
knowledgeable enough to identify them during sentencing."
Ultimately, applying plain-error review, the Court affirmed the defendant's sentence because the alleged error did not affect his substantial rights.
