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Waiver, Forfeiture, Appeal, and Sentencing Guidelines

From the Ninth Circuit en banc today in United States v. Depue, No. 15-10553, unanimous opinion by Judge Berzon:

This appeal is, as Yogi Berra did or did not say, déjà vu all over again.1 We are asked to explain when a defendant is entitled to plain error review of challenges to his sentence that he failed to raise in the district court. Our cases have consistently held that a defendant waives his rights and precludes plain error review only when there is evidence that he knew of his rights at the time and nonetheless relinquished them. Twenty-one years ago, we explained this point in an en banc opinion. United States v. Perez, 116 F.3d 840 (9th Cir. 1997) (en banc). We reaffirm today this distinction between waiver and forfeiture.
Depue challenges (1) the dismissal of a juror who complained of health problems during deliberations, and (2) the district court's sentencing range calculations under the United States Sentencing Guidelines ("Guidelines"). We adopt the three-judge panel's decision that the district court did not abuse its discretion when it dismissed the juror, as well as the panel's reasoning on that issue. See United States v. Depue, 879 F.3d 1021, 1027-28 (9th Cir. 2018). Confining our en banc consideration to Depue's challenge to the Guidelines calculations, we hold that Depue's failure to object to the Guidelines calculations at sentencing constitutes forfeiture subject to plain error review, but that there was no plain error.

1. Victor Mather & Katie Rogers, Behind the Yogi-isms: Those Said and Unsaid, N.Y. Times (Sept. 23, 2015), https://www.nytimes.com/2015/09/24/sports/yogi-berra-yogi-isms-quotes-explored.html.

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