                             In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 06-4098
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                                v.

DAMIEN BRODIE,
                                          Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
    for the Southern District of Indiana, Indianapolis Division.
         No. 06 CR 47—Larry J. McKinney, Chief Judge.
                         ____________
ARGUED SEPTEMBER 10, 2007—DECIDED OCTOBER 19, 2007
                  ____________


 Before EASTERBROOK, Chief Judge, and KANNE and
EVANS, Circuit Judges.
  KANNE, Circuit Judge. Damien Brodie was convicted
after a jury trial of possession of cocaine and marijuana
with the intent to distribute. See 21 U.S.C. § 841(a)(1).
On appeal he argues that evidence recovered from his
jacket should not have been admitted at trial. He also
challenges the district court’s calculation of his 240-
month sentence under the sentencing guidelines. For the
reasons set forth in this opinion, we affirm both his
conviction and sentence.
2                                            No. 06-4098

                      I. HISTORY
  On February 22, 2006, law enforcement officers executed
a “no-knock” search warrant at a double-family residence
located at 521 North Temple Avenue in Indianapolis. The
warrant gave the officers authority to search the house
and to search for an individual known only as “Computer.”
Upon arriving at the address, the officers saw someone
peer out the window. The officers then breached the
front door.
  After entering the residence, two officers observed
Brodie, who was inside, remove his jacket, toss it into a
corner, and run into the kitchen. The officers immediately
ordered Brodie to the floor and secured the premises.
Inside the jacket, the officers discovered a brown paper
bag filled with marijuana and crack cocaine. The officers
then searched Brodie himself and recovered 89 empty
plastic baggies. Brodie was arrested and taken to the
Marion County Jail where he was released the same day
after posting a surety bond. Thereafter, in March 2006, a
grand jury indicted Brodie on two counts of violating
§ 841(a)(1) based entirely on the evidence recovered
from 521 North Temple Avenue.
  The next month, on April 10, 2006, law enforcement
officers executed an arrest warrant issued for Brodie upon
the indictment, this time at his home at 1822 North
Irvington Avenue. While arresting Brodie, the officers
seized two digital scales containing marijuana and cocaine
residue, as well as nine grams of marijuana. After this
arrest, Brodie was detained pending trial.
  Shortly before trial, Brodie moved to suppress the
evidence recovered from the search of his home on April
10—evidence that the government sought to introduce at
trial under Federal Rule of Evidence 404(b). After a
suppression hearing, the district court denied the motion,
concluding that Brodie had consented to the officers’
No. 06-4098                                                  3

search of his home. At no time did Brodie challenge the
admissibility of the evidence underlying the indict-
ment—the evidence recovered during the February 22
search of 521 North Temple—either in his motion to
suppress or during the suppression hearing.
  After a two-day trial, a jury found Brodie guilty on two
counts of violating § 841(a)(1). The probation officer
prepared a presentence investigation report (PSR), in
which he computed Brodie’s base offense level at 32 based
upon the amount of drugs involved in the offense. See
U.S.S.G. § 2D1.1(c)(4). To this initial calculation the officer
added two levels because the offense involved a firearm,
see id. § 2D1.1(b)(1), and two levels because Brodie com-
mitted perjury at trial, see id. § 3C1.1. The total offense
level of 36, combined with Brodie’s Criminal History
Category of III, yielded a guidelines range of 240 to 293
months’ imprisonment.
  Brodie’s counsel filed two written objections to the PSR,
one challenging each offense-level increase. At his sen-
tencing hearing, Brodie acknowledged that he had re-
viewed the PSR with his attorney. The court then heard
oral argument on each of Brodie’s two objections: the
district court sustained the objection to the offense-level
increase because the crime involved a firearm and denied
Brodie’s objection to the offense-level increase for perjury.
The court then asked Brodie whether he disputed his
Criminal History Category as calculated under the guide-
lines. Brodie replied, “No.” The court further inquired, “Is
there anything else contained within the presentence
investigative report that you would like to bring to my
attention, Mr. Brodie?” This time Brodie answered, “Not
Really.” After giving consideration to the parties’ argu-
ments regarding the length of sentence to impose, see
18 U.S.C. § 3553(a), the district court sentenced Brodie
at the bottom of the guidelines range to 240 months’
imprisonment.
4                                               No. 06-4098

                       II. ANALYSIS
  Brodie appeals both his conviction and sentence, assign-
ing error to (1) the district court’s admission of evidence
obtained during the February 22 search, (2) the district
court’s consideration of Brodie’s prior criminal convic-
tions that were not proven beyond a reasonable doubt to
a jury during sentencing, and (3) the district court’s use of
the sentencing guidelines’ suggested crack-to-cocaine-
powder ratio found in U.S.S.G. § 2D1.1(c). However, Brodie
never raised any of these arguments before the district
court even though he had the opportunity to do so.
  Our precedent regarding the waiver or forfeiture of
rights by a criminal defendant is well-established. “Waiver
occurs when a criminal defendant intentionally relin-
quishes a known right.” United States v. Haddad, 462 F.3d
783, 793 (7th Cir. 2006); United States v. Murry, 395 F.3d
712, 717 (7th Cir. 2005); United States v. Staples, 202 F.3d
992, 995 (7th Cir. 2000). Forfeiture occurs when a defen-
dant negligently fails to assert a right in a timely fashion.
Haddad, 462 F.3d at 793; Staples, 202 F.3d at 995. Waiver
of a right extinguishes any error and precludes appellate
review, whereas forfeiture of a right is reviewed for
plain error. See Haddad, 462 F.3d at 793; Staples, 202
F.3d at 995. With this framework in mind, we will first
review the failure-to-suppress error Brodie assigns to his
conviction, and then turn to the alleged errors in the
district court’s sentencing.
  Fed. R. Crim. P. 12(b) provides an example of how “use
of the word ‘waiver’ when one actually means ‘forfeiture’
has led to some difficulty distinguishing the two terms.”
United States v. Murdock, 491 F.3d 694, 698 (7th Cir.
2007). According to Rule 12(b), a criminal defendant
must move to suppress evidence prior to trial. See Fed. R.
Crim. P. 12(b)(3)(C). Moreover, Rule 12(e) states that a
defendant who does not assert a timely motion to suppress
No. 06-4098                                                5

“waives” the defense. See Fed. R. Crim. P. 12(e). The text
of Rule 12(e) allows the court to grant relief from such a
waiver for good cause. Id.
  In United States v. Johnson, we held that “in context the
word ‘waiver’ in Rule 12(e) does not carry the strict
implication of an ‘intentional relinquishment of a known
right’ that precludes all appellate review.” 415 F.3d 728,
730 (7th Cir. 2005). We reasoned that a defendant’s
failure to move to suppress evidence in a timely fashion
is more analogous to the passivity or neglect characteristic
of forfeiture. See id. We also noted that the court’s ability
to grant relief from a Rule 12(e) waiver for good cause
militated in favor of classifying the failure to assert a
motion to suppress as forfeiture rather than waiver. Id.
Therefore, because there is no evidence in the record of
Brodie’s intention to relinquish his suppression motion
other than his failure to comply with Rule 12(b)’s man-
date that such a motion must be made before trial,
Brodie has forfeited this argument.
  Although a forfeited argument usually warrants plain
error review, before engaging in such review for a Rule 12
forfeiture we must address “the antecedent question
implicit in the language of Rule 12(e)”: whether or not the
defendant has established good cause for his neglect. See
id. at 730-31. This court has repeatedly held that there is
no good cause to excuse a Rule 12 forfeiture where a
defendant files a timely motion to suppress on one ground,
and later seeks to assert a new ground for suppression for
the first time on appeal. See Murdock, 491 F.3d at 698;
Johnson, 415 F.3d at 730. This is precisely what Brodie
has done in this case. Before trial, Brodie filed a timely
motion to suppress in which he challenged evidence
recovered during the April 10 search. Brodie failed to
lodge any objection to the February 22 search in that
motion or at the suppression hearing before the dis-
6                                             No. 06-4098

trict court. It is only now, on appeal, that Brodie chal-
lenges the evidence recovered by authorities during the
February 22 search. These actions do not demonstrate
good cause. Because Brodie cannot meet the more exacting
standard of good cause employed by Rule 12(e) our analy-
sis ends here. It is unnecessary to decide whether a
defendant can obtain a de novo appellate decision on the
question of good cause by the expedient of failing to raise
the issue in the district court. Moreover, we need not
review the district court’s admission of evidence col-
lected from the February 22 search for plain error. See
Johnson, 415 F.3d at 731; United States v. Evans, 131 F.3d
1192, 1193-94 (7th Cir. 1997).
  Brodie’s sentencing challenges are similarly meritless. A
defendant who does not object to his sentence when asked
whether he has any objections may communicate an
intention to relinquish any arguments related to his
offense calculation, see United States v. Jaimes-Jaimes,
406 F.3d 845, 848 (7th Cir. 2005); United States v.
Martinez-Jimenez, 294 F.3d 921, 923 (7th Cir. 2002);
Staples, 202 F.3d at 995, and it is clear from the
record that Brodie had access to the PSR and knew of his
right to object to the probation officer’s recommendations.
Brodie objected to certain parts of the PSR and stated on
the record that he did not have any further objections
when asked by the district court. This seems to us the
paragon of intentional relinquishment. See Murry, 395
F.3d at 717 (“In this case, Murry waived his objection
to the jury instruction at issue. The trial court asked
Murry’s counsel twice whether he had any objections to the
instructions and twice he replied definitively that he did
not.”); Richardson, 238 F.3d at 841 (“At sentencing the
judge asked Richardson’s lawyer whether he had an
objection to the enhancement, and the lawyer said ‘no.’
This was a waiver in the strict sense of the term, that is,
a deliberate relinquishment of a known right.”).
No. 06-4098                                               7

  In United States v. Jaimes-Jaimes, we held that “a
lawyer’s statement at sentencing that the defendant does
not object to anything in the presentence report does
not inevitably constitute a waiver.” 406 F.3d at 848.
However, while we declined to read prior precedent as
creating an inflexible rule of waiver, we also reaffirmed
our holding in United States v. Cooper that when the
defendant selects among arguments as a matter of strat-
egy, he also waives those arguments he decided not to
present. See id.; United States v. Kindle, 453 F.3d 438, 442
(7th Cir. 2006); United States v. Cooper, 243 F.3d 411, 416
(7th Cir. 2001). Thus, we deemed a sentencing chal-
lenge was not waived where the government could proffer
no strategic reason for the defendant to forego the argu-
ment, and where counsel would have been deficient for
failing to raise it. See Jaimes-Jaimes, 406 F.3d at 848; see
also United States v. Richardson, 238 F.3d 837, 841 (7th
Cir. 2001) (suggesting that forfeiture applies where an
unambiguous record compels the conclusion that counsel
would have been deficient in not advising defendant to
object).
  That certainly is not at issue in this case where the
defendant as well as counsel stated on the record that he
had no further objections to the PSR and where counsel
had sound reasons not to raise near-frivolous arguments
to the sentencing judge. Cf. United States v. Rezin, 322
F.3d 443, 446 (7th Cir. 2003) (stating that counsel has
tactical reasons to not raise weak arguments as they may
distract the court from the stronger claims). Even assum-
ing that Brodie merely forfeited his objections to the
district court’s sentencing, neither one constitutes plain
error, as defense counsel wisely has conceded. Both the
Supreme Court and this circuit have held that the dis-
trict court may constitutionally increase a sentence after
considering prior convictions not proven to a jury beyond
a reasonable doubt. See Almendarez-Torres v. United
8                                                  No. 06-4098

States, 523 U.S. 224, 246-47 (1998); United States v.
Sachsenmaier, 491 F.3d 680, 684-85 (7th Cir. 2007).
Moreover, it is impossible for us to see how the trial court’s
use of the guidelines ratio could conceivably be plain
error when we have held that it would be reversible
error for the court to have ignored it and substituted a
different ratio. See United States v. Jointer, 457 F.3d 682,
687 (7th Cir. 2006); United States v. Miller, 450 F.3d 270,
275 (7th Cir. 2006). But see United States v. Kimbrough,
174 F. App’x 798 (4th Cir. 2006), cert. granted, 127 S. Ct.
2933 (U.S. June 11, 2007) (No. 06-6330).
  Brodie thus has waived his objections to the district
court’s use of his prior convictions and its use of the
guidelines’ ratio for offenses involving crack. See U.S.S.G.
§ 2D1.1(c).1


                      III. CONCLUSION
 The judgment and sentence of the district court are
AFFIRMED.




1
  We also note that it appears that Brodie may have been eligible
for a consecutive ten-year prison term for his criminal activity
while on pre-trial release based upon the evidence recovered
from his home on April 10—evidence recovered after he was
released on bond for the February 22 incident. See 18 U.S.C.
§ 3147; 21 U.S.C. § 841(a)(1). For reasons that are not clear
from the record, it appears that this conduct was never charged.
No. 06-4098                                          9

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—10-19-07
