United States of America v. Otho Harris

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 23-1294
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
O THO HARRIS ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:19-CR-00916(1) — John J. Tharp, Jr., Judge.
____________________
A RGUED M ARCH 5, 2024 — DECIDED M AY 23, 2024
____________________
Before SYKES , Chief Judge, and LEE and K OLAR , Circuit
Judges.
S YKES , Chief Judge. In September 2019 Otho Harris visited
a Boost Mobile store for assistance with his broken cellphone.
He became enraged when he was told that it could not be re-
paired. He returned in the middle of the night and set fire to
the store, causing extensive damage. Harris was charged with
arson in violation of 18 U.S.C. § 844(i). After difficult relation-
ships with three different appointed attorneys, he opted to

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2 No. 23-1294
represent himself and eventually pleaded guilty. He was sen-
tenced to eight years in prison and ordered to pay $195,701 in
restitution.
Represented by counsel on appeal, Harris challenges only
the restitution order, arguing that it was not supported by a
proper investigation and determination of the loss amount.
The presentence report (“PSR”) and the government’s written
version of the offense incorporated a 13-page insurance claim
prepared by the victim’s insurer itemizing the losses from the
fire. Harris never objected to this accounting of the loss
amount. Quite the opposite: he had an opportunity to review
these materials before sentencing, assured the judge that he
had done so, and affirmed the accuracy of the factual material
in the PSR.
Having confirmed the accuracy of the facts in the PSR,
which included the insurance company’s documentation of
the victim’s losses, Harris cannot now contest the restitution
amount. Even if he forfeited rather than waived this restitu-
tion challenge, we see no basis for reversal under the plain-
error standard. We affirm the judgment.
I. Background
On September 9, 2019, Harris took his broken cellphone to
a Boost Mobile store in Chicago to see if it could be repaired.
He became angry when a store employee told him that the
phone had sustained water damage and could not be fixed.
Harris hurled his phone to the floor and left the store. He re-
turned that night—more precisely, at about 4:30 a.m. on Sep-
tember 10—and set fire to the store. He first threw an object
at the glass front door, breaking it. He then poured gasoline
through the broken door, lit the accelerant, and fled the scene

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No. 23-1294 3
when the flames started. The store was heavily damaged in
the fire.
In December 2019 a federal grand jury returned an indict-
ment charging Harris with one count of arson in violation of
§ 844(i), which makes it a federal crime to set fire to a building
used in an activity affecting interstate commerce. The case
moved very slowly. For two years, Harris had trouble estab-
lishing a productive relationship with his appointed counsel.
The district court appointed three different attorneys, but
Harris had disagreements with each one. When the third ap-
pointed lawyer moved to withdraw, he explained that Harris
now wanted to represent himself. After holding a hearing on
the motion, the judge determined that Harris knowingly and
voluntarily waived his right to counsel and could represent
himself.
Over the next year, Harris filed numerous pretrial motions
and requests with the court. A few weeks before the sched-
uled trial date, he agreed to plead guilty and signed a written
plea agreement with the government. As relevant here, he
acknowledged in the agreement that his sentence must in-
clude an order of full restitution to the victims of the crime
(including insurance companies) in an amount to be deter-
mined by the court. The judge accepted his guilty plea and set
the case for sentencing.
The probation office filed a presentence report about a
month before the sentencing hearing. It included a descrip-
tion of the financial impact of Harris’s crime on two victims—
the owner of the Boost Mobile store and his insurer—in the
total amount of $195,701. The PSR incorporated the insurance
company’s 13-page claim report, a copy of which was at-
tached to the government’s written version of the offense.

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4 No. 23-1294
This document provided a detailed itemization of the store’s
losses, which included telecommunications devices and ac-
cessories for sale, business equipment, and office fixtures.
The available insurance coverage was quite limited: the
store owner’s policy limit was just $35,000, which the insurer
reached after appraising 33 of 104 items included in the claim.
The insurance company paid its full policy limit to the store
owner, so the probation officer recommended that the court
order Harris to pay $35,000 to the insurer and the balance—
$160,701—to the store owner.
At the sentencing hearing, the judge confirmed that Harris
had received and reviewed the PSR and the government’s
version of the offense. The judge also confirmed that Harris
had not submitted any objections or arguments in opposition
to the factual matters in the PSR. The judge then asked Harris
if he was satisfied with the accuracy of the factual information
in the PSR. Harris said yes.
After confirming the statutory minimum sentence and the
advisory sentencing range under the Sentencing Guidelines,
the judge heard arguments from both parties and imposed a
sentence of eight years in prison. The judge also adopted the
PSR’s restitution figures and ordered Harris to pay restitution
in the total amount of $195,701—$35,000 to the insurer and the
balance to the store owner.
II. Discussion
Harris’s appeal challenges only the restitution order. Un-
der the Mandatory Victims Restitution Act, 18 U.S.C. § 3663A,
an order of restitution was mandatory in his case, as he
acknowledged in his plea agreement. He contends that the
district judge, the probation office, and the government failed

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No. 23-1294 5
to comply with 18 U.S.C. § 3664 and Rule 32(c)(1)(B) of the
Federal Rules of Criminal Procedure, which prescribe the pro-
cedures for issuing restitution orders. The statute and the rule
require the probation officer to investigate and provide “suf-
ficient” information to permit the court to enter an order of
restitution.1
The government maintains that Harris waived his right to
challenge the restitution order by expressly affirming the ac-
curacy of the factual material in the PSR at the sentencing
hearing. We agree. “Arguments not properly preserved dur-
ing sentencing are either forfeited or waived.” United States v.
Hernandez, 44 F.4th 1053, 1057 (7th Cir. 2022). “The former
1 As relevant, 18 U.S.C. § 3664(a) states:
(a) For orders of restitution under this title, the court shall
order the probation officer to obtain and include in its
presentence report, or in a separate report, as the court
may direct, information sufficient for the court to exercise
its discretion in fashioning a restitution order. The report
shall include, to the extent practicable, a complete ac-
counting of the losses to each victim, any restitution owed
pursuant to a plea agreement, and information relating to
the economic circumstances of each defendant. If the
number or identity of victims cannot be reasonably ascer-
tained, or other circumstances exist that make this re-
quirement clearly impracticable, the probation officer
shall so inform the court.
In the event of a dispute about restitution, the government bears the bur-
den of proving the amount of the victim’s loss. Id. § 3664(e).
Rule 32(c)(1)(B) of the Federal Rules of Criminal Procedure reads:
“Restitution. If the law permits restitution, the probation officer must con-
duct an investigation and submit a report that contains sufficient infor-
mation for the court to order restitution.”

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6 No. 23-1294
permits limited appellate review; the latter precludes it.” Id.
at 1057–58. Though we have not always been clear about the
difference between forfeiture and waiver, our more recent
cases have clarified the distinction. See, e.g., United States v.
Flores, 929 F.3d 443, 447–49 (7th Cir. 2019).
“Waiver occurs when a party intentionally relinquishes a
known right and forfeiture arises when a party inadvertently
fails to raise an argument in the district court.” Id. at 447.
Waiver extinguishes appellate review; forfeited arguments
are reviewed under the plain-error standard set forth in Rule
52(b) of the Federal Rules of Criminal Procedure. United States
v. Olano, 507 U.S. 725, 733 (1993).
The Olano plain-error framework proceeds in four steps
and begins with the threshold question of waiver: “First, there
must be an error or defect—some sort of ‘[d]eviation from a
legal rule’—that has not been intentionally relinquished or
abandoned, i.e., affirmatively waived, by the appellant.” Puck-
ett v. United States, 556 U.S. 129, 135 (2009) (quoting Olano, 507
U.S. at 732–33). “Second, the legal error must be clear or obvi-
ous, rather than subject to reasonable dispute.” Id. (citing
Olano, 507 U.S. at 734). “Third, the error must have affected
the appellant’s substantial rights, which in the ordinary case
means he must demonstrate that it ‘affected the outcome of
the district court proceedings.’” Id. (quoting Olano, 507 U.S. at
734). The fourth and final step requires the court to make a
discretionary judgment about whether the error warrants a
remedy; reversal is justified “only if the error ‘seriously af-
fect[s] the fairness, integrity[,] or public reputation of judicial
proceedings.’” Id. (quoting Olano, 507 U.S. at 736). Satisfying
all four steps “is difficult, as it should be.” Id. (quotation
marks omitted).

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No. 23-1294 7
The conditions for finding waiver “depend on the right at
stake.” Olano, 507 U.S. at 733. The bar is quite high in the con-
text of a guilty plea, but less is needed to waive challenges to
jury instructions, sentencing issues, or conditions of super-
vised release. Flores, 929 F.3d at 448. Particularly relevant to
this case, we have held that “[a] criminal defendant waives
the right to contest the judge’s factual findings at sentencing
when he expressly states on the record that he has no objec-
tion to the findings.” United States v. Coffin, 23 F.4th 778, 780–
81 (7th Cir. 2022) (quotation marks omitted). Evidence of ac-
quiescence is also relevant, especially “acquiescence … in the
face of notice.” Hernandez, 44 F.4th at 1058.
Here the judge began the sentencing hearing by confirm-
ing that Harris had received and reviewed both the PSR and
the government’s written version of the offense, which in-
cluded a copy of the itemized insurance claim detailing the
losses from the fire damage. The judge also confirmed that
Harris had no objections or arguments in opposition to the
factual matters in the PSR. Finally, the judge asked Harris if
he was satisfied with the accuracy of the factual information
in the PSR. He responded in the affirmative. The record is
clear that Harris had ample notice of the restitution amount,
the factual basis for it, and an opportunity to object. He did
not object; on the contrary, he affirmed that he was satisfied
with the accuracy of the factual material in the PSR. That’s a
waiver.
Harris resists this conclusion, noting that the judge did not
question him specifically about restitution and that there was
no strategic reason for him to forgo an objection to the amount
of restitution he owed. He also argues that a more rigorous
standard should apply to waiver in the context of restitution

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8 No. 23-1294
because, unlike conditions of supervised release, the amount
of restitution is not modifiable. Compare 18 U.S.C. § 3664(o)
(permitting changes to restitution primarily concerning a pay-
ment schedule), with 18 U.S.C. § 3583(e) (permitting termina-
tion, extension, or revocation of supervised release).
We’re not persuaded. We have previously recognized that
resolving waiver questions in the restitution context—like
waiver of arguments about supervised-release conditions—
does not require a rigid analysis. Compare Flores, 929 F.3d at
448–50 (holistic evaluation of waiver in the context of an un-
preserved challenge to supervised-release conditions), with
Hernandez, 44 F.4th at 1057–60 (same as to restitution). And
although the existence (or absence) of a strategic reason to
forgo an objection can be informative, see United States v.
Dridi, 952 F.3d 893, 898 (7th Cir. 2020), we have held that “ev-
idence of a strategic reason not to object … is a sufficient, but
not a necessary, ground on which to find waiver,” Flores,
929 F.3d at 448. We have also explained that identifying a stra-
tegic reason for omitting an objection may be more relevant
where the record is ambiguous as to waiver. See Hernandez, 44
F.4th at 1060.
Harris’s conduct at the sentencing hearing was anything
but ambiguous. He had a month’s time to review the PSR and
the incorporated insurance accounting, which detailed the
restitution amount recommended by the government and the
probation officer. He was given an opportunity to raise any
concerns regarding the factual accuracy of the PSR. Harris
therefore had “ample advance notice” of the proposed resti-
tution amount, was “expressly invited” to object, and “ex-
pressly declined” to do so, confirming that he had no
objection and expressly affirming the accuracy of the facts in

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No. 23-1294 9
the PSR. United States v. Lewis, 823 F.3d 1075, 1079 (7th Cir.
2016).
Even if we were to conclude that Harris forfeited rather
than waived his challenge to the restitution order, we would
not reverse on plain-error review. An error is “plain” under
the Olano standard only if it is “clear or obvious, rather than
subject to reasonable dispute.” Puckett, 556 U.S. at 135. Here
the judge relied on information presented by the probation
officer, as required by statute, and accepted the itemized
claim accounting from the insurance company as a reasonable
measure of the losses from the fire. On appeal Harris raises
nuanced arguments about the appropriate measure of loss for
consumer goods like cellphones and other telecommunica-
tions equipment, including arguments about depreciation
and the difference between retail and wholesale price and re-
placement and market value. That hardly describes a “clear
or obvious” error. Reasonable minds can differ on how a court
should measure pecuniary loss in this context; accepting an
insurance-claim accounting is certainly one reasonable op-
tion. To reverse on plain-error review would require us to say
that the judge should have raised and resolved these complex
and fact-intensive questions unprompted. It’s not possible to
say that here.
A FFIRMED

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