United States v. Pena: Waiver of Rule 32.1 Revocation Protections by Electing to Proceed, and Mandatory Specificity for “Risk-Notification” Supervised-Release Conditions

Court: U.S. Court of Appeals for the Seventh Circuit
Date: August 5, 2026
Case: United States v. Shawn Pena, No. 25-1691

1. Introduction

Shawn Pena, previously convicted of conspiracy to engage in interstate transportation of stolen goods, began supervised release in June 2023. Within months, probation alleged multiple violations (new arrests, unauthorized travel, failure to report address changes, and association with a felon). Pena then failed to appear, became a fugitive for over a year, and was later arrested in Illinois on new charges involving flight from police and an injured officer; probation added still more allegations arising from a Wisconsin arrest.

At revocation, Pena and the government jointly recommended a 14-month sentence based on admissions to four Grade C violations with dismissal of other allegations. The district court imposed the statutory maximum 24 months’ imprisonment plus one year of supervised release and included a “risk-notification” condition (Special Condition 13) requiring third-party notification if probation deemed Pena “a risk to another person.”

The appeal presented four clusters of issues: (i) notice/disclosure and use of police reports tied to dismissed allegations; (ii) whether the government breached the parties’ sentencing recommendation; (iii) whether the district court impermissibly relied on retribution in revocation sentencing; and (iv) whether Special Condition 13 was constitutional.

2. Summary of the Opinion

The Seventh Circuit largely affirmed. It held that Pena waived Rule 32.1(b)(2) notice/disclosure and cross-examination complaints by choosing to proceed after the district court offered more time. It rejected the “party presentation” challenge to the district court’s consideration of police reports tied to dismissed allegations, explaining the court used them for permissible sentencing considerations (public safety) rather than to adjudicate dismissed violations. It also found no breach of the parties’ recommendation by the government, and no improper reliance on retribution under Esteras v. United States.

However, the court vacated Special Condition 13 as unconstitutionally vague under Seventh Circuit precedent and remanded for the limited purpose of recasting the condition in more concrete terms. The 24-month prison term and 12-month supervised-release term were affirmed.

3. Analysis

3.1 Precedents Cited

A. Waiver of Rule 32.1(b)(2) protections by electing to proceed

  • United States v. Harris, 102 F.4th 847 (7th Cir. 2024) (citing United States v. Flores, 929 F.3d 443 (7th Cir. 2019)): The panel treated the district court’s direct offer of additional time—and Pena’s decision to go forward—as “quintessential waiver” of Rule 32.1(b)(2) disclosure and notice protections, as well as any related cross-examination opportunity under Rule 32.1(b)(2)(C).
    How it influenced Pena: The court did not balance prejudice or consider whether notice was “enough”; it ended the inquiry at waiver because Pena intentionally relinquished the right after being offered time to prepare.

B. Limits of the “party presentation” principle in sentencing/revocation

  • United States v. Sineneng-Smith, 590 U.S. 371 (2020): This case frames the party presentation principle (courts decide questions the parties present). Pena invoked it to argue the district court could not consider police reports tied to dismissed allegations. The panel distinguished the doctrine because the court did not decide the “unasked question” of whether dismissed violations occurred; it used the information as sentencing input relevant to public safety.

C. Reliance on police reports and “sufficient indicia of reliability”

  • United States v. Mansfield, 21 F.4th 946 (7th Cir. 2021) (quoting United States v. Guajardo-Martinez, 635 F.3d 1056 (7th Cir. 2011)): Sentencing courts may consider police reports if they carry “sufficient indicia of reliability to support [their] probable accuracy,” especially where the defendant does not object to the underlying facts. The panel applied this directly: Pena did not object to facts in the reports and partially corroborated them (he was injured too).

D. Alleged breach of sentencing recommendation: standards and substance

  • United States v. Taylor, 909 F.3d 889 (7th Cir. 2018) (citing Puckett v. United States, 556 U.S. 129 (2009)): Because Pena did not object in the district court, the claim was forfeited and reviewed only for plain error.
  • United States v. Orlando, 823 F.3d 1126 (7th Cir. 2016): Provided the panel’s plain-error framework; the panel ultimately found no error at all.
  • United States v. Hauptman, 111 F.3d 48 (7th Cir. 1997), contrasted with United States v. Diaz-Jimenez, 622 F.3d 692 (7th Cir. 2010): The government may acknowledge the court’s discretion without breaching; breach occurs where the prosecutor implicitly urges a higher sentence (as in Diaz-Jimenez’s “a larger sentence could be appropriate”).
  • United States v. Veteto, 945 F.2d 163 (7th Cir. 1991): Probation acts as an arm of the court and may make its own recommendation; this supported the conclusion that the government had no duty to “oppose probation” to honor its joint recommendation.
  • Campbell v. Smith, 770 F.3d 540 (7th Cir. 2014) (citing United States v. Benchimol, 471 U.S. 453 (1985)): The Constitution does not require “enthusiastic” advocacy for an agreed recommendation. This undercut Pena’s argument that “tepid” advocacy was a breach.
  • United States v. Rachuy, 743 F.3d 205 (7th Cir. 2014): No breach where the government repeatedly recommends the agreed sentence even while referencing aggravating history—mirroring the government’s posture here.

E. Probation’s role: neutral information-gatherer, not an adversary

  • United States v. White, 868 F.3d 598 (7th Cir. 2017): Probation officers are “neutral information gatherer[s].” The panel relied on this to reject claims that probation’s advocacy crossed the line.
  • United States v. Peterson, 711 F.3d 770 (7th Cir. 2013): While probation may not take on an adversarial role, the panel held probation stayed within permissible bounds by pointing to record facts (fugitive status, criminal history) and offering a risk assessment.

F. Retribution is impermissible in revocation sentencing

  • Esteras v. United States, 606 U.S. 185 (2025): Revocation sentencing under 18 U.S.C. §§ 3583(c), (e)(3) may consider deterrence, public safety, and rehabilitation, but not the retributive purposes in § 3553(a)(2)(A) (seriousness, just punishment, respect for law). The panel read the district court’s remarks as public-safety and deterrence driven, not punishment for the underlying conviction.

G. Vagueness of “risk-notification” conditions

  • United States v. Greco, 938 F.3d 891 (7th Cir. 2019); United States v. Bickart, 825 F.3d 832 (7th Cir. 2016): The panel held Special Condition 13 was similarly vague because of the breadth of “risk” and the undefined universe of “another person,” requiring remand to “recast the condition in more concrete terms.”

3.2 Legal Reasoning

A. Procedural protections at revocation: waiver versus violation

The opinion draws a bright procedural line: when a court offers additional time to review disclosures and prepare, and the defendant affirmatively elects to proceed, Rule 32.1(b)(2) arguments (notice, disclosure, and the practical ability to cross-examine) are waived. This is not treated as a mere forfeiture, but as an intentional relinquishment foreclosing appellate review.

B. Considering conduct described in police reports tied to dismissed allegations

The court distinguished between (i) using allegations to adjudicate guilt on dismissed violations (impermissible under Pena’s framing) and (ii) considering reliable information about recent conduct for permissible sentencing factors in the admitted violations—especially public safety under 18 U.S.C. § 3553(a)(2)(C), incorporated through 18 U.S.C. § 3583(c). In the panel’s view, the district court did the latter: it relied on the West Chicago incident’s dangerousness as evidence of risk.

C. Plea/revocation recommendation enforcement: what counts as a “breach”

The opinion treats two prosecutor behaviors as non-breaching: (1) acknowledging the judge’s discretion to exceed the recommendation, and (2) not counterarguing probation’s higher recommendation. The underlying principle is that a breach requires advocacy inconsistent with the promised recommendation; mere lack of enthusiasm or contextual discussion of aggravating facts does not suffice, particularly where the prosecutor still states the agreed recommendation on the record.

D. Retribution after Esteras: parsing “danger” from “punishment”

Applying Esteras v. United States, the panel scrutinized whether the district court’s emphasis on “dangerousness” was covert retribution. It concluded it was not because the court repeatedly grounded its decision in forward-looking aims—protecting the public, preventing someone from getting hurt, and deterring recurrence—rather than backward-looking moral condemnation or “just punishment” for the underlying conviction.

E. Supervised-release conditions: vagueness as the decisive constitutional defect

Although Pena raised delegation and compelled-speech theories, the panel resolved the condition solely on vagueness grounds because Seventh Circuit precedent already condemns open-ended “risk” notification obligations that fail to define (1) what constitutes a “risk,” (2) who must be notified, and (3) what must be said. The remedy was a limited remand to rewrite the condition concretely.

3.3 Impact

  • Revocation practice and defense strategy: The decision underscores that accepting a court’s invitation to proceed—after being offered more time—can conclusively waive Rule 32.1(b)(2) objections. Defense counsel seeking to preserve notice/disclosure/cross-examination issues should create a clear record requesting time or objecting before proceeding.
  • Sentencing information scope in revocation: The opinion reinforces that dismissed-allegation police reports may still inform revocation sentencing when used for permissible factors (especially public safety) and when reliability concerns are not timely raised.
  • Government recommendation obligations: Prosecutors may acknowledge judicial discretion and may refrain from debating probation without automatically breaching an agreed recommendation—so long as they do not affirmatively advocate a higher sentence.
  • Post-Esteras revocation sentencing: District courts must be careful to articulate deterrence/public-safety/rehabilitation rationales rather than retributive ones. Pena illustrates how “danger” can be framed as a public-safety prediction rather than punishment for past wrongdoing.
  • Condition drafting: “Risk-notification” conditions remain a recurring vulnerability. The decision continues the Seventh Circuit’s insistence that such conditions be narrowed with concrete triggers, defined audiences, and clear notification content.

4. Complex Concepts Simplified

  • Supervised release revocation: A post-prison monitoring regime; violations can lead to imprisonment and a new supervised-release term.
  • Grade C violations and “policy range”: The Sentencing Guidelines provide advisory ranges for revocation based on violation “grade” and criminal history; here the admitted Grade C range was 8–14 months, but the statutory cap allowed 24 months.
  • Waiver vs. forfeiture: Waiver is an intentional giving up of a right (generally unreviewable on appeal); forfeiture is a failure to raise an issue (reviewable only under strict standards like plain error).
  • Plain error review: A demanding standard requiring an obvious legal error that likely affected the outcome and seriously undermined the proceeding’s fairness.
  • “Indicia of reliability” for sentencing facts: Courts may consider a broad range of information at sentencing; if the information appears reliable and the defendant does not contest it, it can be used even if it would not be admissible at trial.
  • Vagueness (supervised-release conditions): A condition is unconstitutional if people of ordinary intelligence cannot tell what is required or if it invites arbitrary enforcement—especially when terms like “risk” and “another person” are left undefined.

5. Conclusion

United States v. Pena affirms a lengthy above-range revocation sentence while delivering two practical lessons. First, in revocation proceedings, a defendant who is offered more time to review reports and prepare—but chooses to proceed—waives Rule 32.1(b)(2) notice/disclosure and cross-examination complaints. Second, the Seventh Circuit continues to invalidate broadly worded “risk-notification” supervised-release conditions as unconstitutionally vague, requiring district courts to rewrite them in concrete, clearly bounded terms. Along the way, the opinion applies Esteras v. United States to confirm that revocation sentencing must rest on deterrence, public safety, and rehabilitation—not retribution.