United States v. Booker Sewell

14-1384In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-1384

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BOOKER T. SEWELL,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Fort Wayne Division.

No. 1:11-CR-35 — Theresa L. Springmann, Judge.

____________________

ARGUED SEPTEMBER 26, 2014 — DECIDED MARCH 13, 2015

____________________

Before FLAUM, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge. Following a thirteen-month inves-

tigation of a drug-trafficking network that stretched from

Mexico to California to Indiana, the United States secured a

warrant to search seven homes in Fort Wayne, Indiana. Ap-

pellant Booker T. Sewell stayed in one of those homes, locat-

ed at Sawmill Woods Court.

2 No. 14-1384

When a team of federal and local authorities arrived

there, they soon discovered, among other items, 110 grams

of marijuana, cutting agents for cocaine, a drug ledger, mul-

tiple scales, $19,900 in cash in the dishwasher, and a loaded

revolver. The presentation of this evidence led to Sewell’s

convictions and sentence, which he now appeals.

Sewell raises four issues. He first argues that the search

warrant was issued without probable cause. He next chal-

lenges the sufficiency of the evidence to sustain his convic-

tion for being a felon in possession of a firearm. His remain-

ing two challenges concern sentence enhancements applied

by the district court.

For the reasons expressed below, we affirm the judgment

of the district court on each of the four issues raised by Sew-

ell. In light of our recent decisions in United States v. Thomp-

son, Nos. 14-1316, 14-1521, 14-1676, 14-1772, 2015 U.S. App.

LEXIS 604 (7th Cir. Jan. 13, 2015), and United States v. Siegel,

753 F.3d 705 (7th Cir. 2014), however, we vacate Sewell’s

conditions of supervised release and remand for resentenc-

ing.

I. BACKGROUND

The seeds for this case were first sown in 2010. That year,

the FBI Safe Streets Task Force in Fort Wayne, Indiana,

commenced an investigation into cocaine trafficking that be-

gan with controlled buys of powder and crack cocaine. The

No. 14-1384 3

investigation ended more than a year later with the arrests of

Booker T. Sewell and Silvestre Castaneda, 1 among others.

Sewell, of course, is the appellant in this case. Along with

his brothers, Jermorris T. Sewell and Antonio Sewell, Booker

Sewell purchased and then sold cocaine and marijuana.

Castaneda, on the other hand, served as the major supplier

from California. He coordinated the movement of the drugs,

largely through commercial shipping companies (by way of

sealed soup cans) from California to Indiana. Like Sewell,

Castaneda made his business a family affair: Maritza

Castaneda, his sister, and Pedro Castaneda Jr., his brother,

helped transport the drugs across the country.

On January 27, 2011, the FBI intensified its investigation

by implementing court-authorized wiretaps on Castaneda’s

telephones. Castaneda, like others in the drug trade, used

multiple telephones to evade police detection. The FBI’s mul-

tiple taps thwarted this strategy, recording numerous con-

versations between Castaneda, Sewell, and their cohorts.

But Castaneda and Sewell utilized a long-attempted

“safeguard”: they spoke in code. For example, Sewell asked

Castaneda on one telephone call, “You got the one?”

Castaneda replied, “I don’t know, do you have … the three

man?” In another instance, Castaneda told Sewell that he

would “call … for sure when I have the stuff.” On another

occasion, Castaneda told Sewell that he would soon return

from a trip to California. Sewell assured him, “OK, I’ll be

1 Although court transcripts spell his name “Sylvester” Castaneda, both

the government and Appellant spell his name “Silvestre.” We adopt the

latter spelling.

4 No. 14-1384

ready.” And Castaneda replied, “I am going to bring some

OK?” On yet another occasion, the two delayed their

meeting together and waited for the sky to “get[] a little, get

kinda dark.”

Real-world events furnished these coded conversations

with some context. Two days after Castaneda told Sewell

that he was “going to bring some,” for example, the Fort

Wayne Police Department intercepted three kilograms of co-

caine shipped in sealed soup cans from California. In 2010,

authorities at a bus station seized $178,530 in cash found in

sealed soup cans located in the bag of Castaneda’s sister.

Then, on March 12, 2011, authorities observed Castaneda

travelling to Sawmill Woods Court, where Sewell’s wife,

Martine, leased a condo. Authorities believed Sewell stayed

at Sawmill Woods Court with his wife, and that he conduct-

ed much of his drug business there. Authorities were not

certain, however, as the lease listed Sewell’s wife as the

home’s only occupant. Adding to the uncertainty was the

fact that, at some point, Martine had secured a protective or-

der against her husband.

Sewell hangs his hat on this uncertainty, arguing that the

police could not tie him, or any drug activity, for that matter,

to Sawmill Woods Court. He also argues that the recorded

conversations revealed nothing more than “neutral words,”

words that in his view failed to establish probable cause. We

address these arguments in detail below. Before we do, some

additional background is necessary.

A. The Warrant Application

On March 31, 2011, FBI Special Agent (“Agent”) James

Keszei filed a warrant application to search seven homes,

No. 14-1384 5

including Sewell’s suspected home at Sawmill Woods Court.

In his accompanying affidavit, Agent Keszei expressly relied

on his fifteen years in law enforcement (including six years

as a police officer for South Bend, Indiana, and time spent

working narcotics and gangs). Specifically, he offered opin-

ions and inferences in his application that, although ground-

ed in the investigation, were informed by his training and

experience. All told, Agent Keszei’s affidavit spanned sixty-

five pages.

The magistrate judge wasted no time. He granted the ap-

plication and issued the warrant that same day—March 31,

2011.

B. Execution of the Warrant & Subsequent Indictment

Members of the Fort Wayne Police Department, coupled

with FBI special agents, executed the warrant on April 13,

2011. When they arrived at the Sawmill Woods Court home,

they encountered Sewell downstairs. They read him his

rights and gave him a copy of the warrant. Sewell immedi-

ately offered damning information: he told the authorities

that he kept marijuana in the house along with a significant

sum of cash in the dishwasher. Sure enough, the officers

found 110.9 grams of marijuana under the kitchen sink and

$19,900 in a safe kept in the dishwasher. Another $2,017 was

found in a pair of jeans located in the living room.

Sewell further admitted that he kept a gun underneath

the bed in the upstairs bedroom. He claimed that his wife

did not know anything about the gun, and that it was there

for self-defense. “If it wasn’t you all running up in here,” he

offered, “I would be using my gun for my protection, you

know what I mean.” Sure enough, the officers found a load-

6 No. 14-1384

ed revolver underneath the bed. When the authorities re-

trieved it, Sewell’s wife disclaimed any knowledge of its

presence in the home.

Authorities found other inculpatory evidence. They

discovered, for example, a ledger with notes that detailed at

least one cutting agent for cocaine—“lidocaine.” The words

“cut coke” were conspicuously jotted next to that note. In a

cabinet above the refrigerator, authorities found plastic

wrapping with cocaine residue, a scale (a second one was

found on the refrigerator itself), and a bottle containing 88.9

grams of lidocaine, the cutting agent listed in the ledger.

Under the kitchen sink, another cutting agent—inositol—

was found. Authorities also discovered telephones that were

determined to be the phones from which Sewell called

Castaneda.

Later that month, a federal grand jury returned a two-

count indictment against Sewell: (1) being a felon in posses-

sion of a firearm; and (2) maintaining a place for the purpose

of distributing controlled substances (marijuana and co-

caine). See 18 U.S.C. §§ 922(g)(1), 924(e) and 21 U.S.C.

§ 856(a)(1), respectively.

C. Trial and Sentencing

Sewell pled not guilty to both counts, and his trial lasted

four days. During its case-in-chief, the government called

Castaneda as a witness. Castaneda was also arrested in April

of 2011, and he testified against Sewell with the expectation

that he might obtain some sentencing relief for his coopera-

tion. Castaneda testified that he first met Sewell in 2007 or

2008, and that, over the years, they met more than fifty times

to exchange drugs and money. According to Castaneda, sev-

No. 14-1384 7

eral of those meetings occurred at Sawmill Woods Court. Fi-

nally, Castaneda confirmed that he spoke in coded language

when he talked to Sewell on the telephone.

Sewell’s wife, Martine, also testified at trial. Unlike

Castaneda, however, she testified in Sewell’s defense.

Specifically, she claimed that her father gave her the revolver

that the police retrieved from underneath the bed. For

whatever reason, though, she could not recall its caliber or

strength of recoil. It was a .38.

The jury returned a verdict finding Sewell guilty on both

counts.

Approximately six months later, the district court held an

evidentiary hearing to address sentencing matters. Detective

Adalberto Martinez of the Indiana State Police testified at

that hearing. He had participated in a pre-trial interview of

Castaneda, wherein Castaneda described his many dealings

with Sewell. The government probed this topic during the

evidentiary hearing.

Q. Okay. Did Mr. Castaneda say like overall how

much cocaine he had supplied to Booker Sewell over

their [sic] course of their relationship?

A. Mr. Sylvester [sic] Castaneda approximated 30

to 40 kilograms from 2008 to 2011.

Q. Okay. What was the price range that Castaneda

was charging Booker Sewell for kilos of cocaine?

A. Approximately 2008 when it started, it was

about $25,000 and it ranged up to $30,500 in 2011.

Four months after that hearing, the district court sen-

tenced Sewell to concurrent terms of 360 and 240 months of

8 No. 14-1384

imprisonment. That total resulted, in part, from two sentence

enhancements: (1) possession of a firearm in connection with

drug dealing and (2) criminal activity involving not less than

fifteen kilograms but not more than fifty kilograms of co-

caine. U.S.S.G. §§ 4B1.4(b)(3)(A), 2D1.1(c)(3). The district

court also ordered Sewell to serve three years of supervised

release (accompanied by a number of mandatory, standard,

and special conditions), pay a $200 special assessment, and

forfeit the $21,917 recovered during the search of Sawmill

Woods Court.

With this background in mind, we turn to the merits.

II. ANALYSIS

A. Probable-Cause Determination

Sewell argues that the warrant to search Sawmill Woods

Court was issued without probable cause. His argument

boils down to an attack on Agent Keszei’s affidavit, the sole

evidence upon which the magistrate judge based his proba-

ble-cause determination. Specifically, Sewell argues that the

affidavit was deficient because it failed to show that he was

involved in any criminal activity. And even if it did, then the

affidavit failed to establish a connection between that crimi-

nal activity and Sawmill Woods Court. We disagree.

To begin, we afford great deference to the decision of the

magistrate judge who issued the warrant. United States v.

Alijabari, 626 F.3d 940, 944 (7th Cir. 2010). Although we

review the sufficiency of the officer’s affidavit de novo

(insofar as it presents questions of law under the Fourth

Amendment), Alijabari, 626 F.3d at 944, we remain mindful

that the magistrate judge must “make a practical, common-

sense decision whether, given all the circumstances set forth

No. 14-1384 9

in the affidavit before him, including the veracity and basis

of knowledge of persons supplying hearsay information,

there is a fair probability that contraband or evidence of a

crime will be found in a particular place.” Illinois v. Gates, 462

U.S. 213, 238 (1983) (internal quotation marks omitted).

Probable cause exists “where the known facts and cir-

cumstances are sufficient to warrant a man of reasonable

prudence in the belief that contraband or evidence of a crime

will be found[.]” Ornelas v. United States, 517 U.S. 690, 696

(1996). A “fluid concept,” its determination rests on “the fac-

tual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, act.”

United States v. Carroll, 750 F.3d 700, 703 (7th Cir. 2014) (cita-

tions omitted). As a result, we will not disturb a finding of

probable cause so long as the issuing judge had a substantial

basis for concluding that the proposed search would uncov-

er evidence of wrongdoing. United States v. Dismuke, 593 F.3d

582, 586 (7th Cir. 2010) (citations omitted).

Our independent review of Agent Keszei’s affidavit con-

vinces us that the magistrate judge had a substantial basis

for his probable-cause finding. Three primary factors pro-

duce this result: (1) the recorded conversations; (2) the cor-

roborating evidence; and (3) the reasonable inferences

drawn therefrom. These factors weave together a stout fabric

of probable cause, rightly resulting in the magistrate judge’s

issuance of the warrant.

We start with the recorded conversations. Sewell argues

that they contain nothing more than “neutral words.” (Ap-

pellant’s Br. 16.) But neutral words, used in the right context,

can harbor sinister meaning. Cf. United States v. Harris, 271

F.3d 690, 702 (7th Cir. 2001) (“It is well known that drug

10 No. 14-1384

dealers commonly use code language out of fear that their

conversations will be intercepted.”). Here, the frequency and

timing of the so-called “neutral words,” juxtaposed against

real-time events (recall the drug busts and cash seizures),

produced a reasonable inference that something criminal

was afoot.

Agent Keszei’s experience in law enforcement and nar-

cotics, moreover, added much weight to the affidavit. He of-

fered opinions and inferences upon which the magistrate

judge was entitled to rely. See United States v. Elst, 579 F.3d

740, 746 (7th Cir. 2009) (“Experienced law enforcement offic-

ers (as well as experienced magistrates) are permitted to

draw reasonable inferences from the facts based on their

training and experience.”). He deciphered that “stuff” meant

“drugs,” and “the one” meant “one kilogram” of cocaine.

Castaneda confirmed the latter translation during trial.

Adding an element of common sense, Agent Keszei also

noted that Sewell’s desire to wait to meet Castaneda until it

“gets a little … dark” was a deliberate effort to avoid surveil-

lance or detection. When viewed in a vacuum, scheduling a

nighttime meeting may not mean anything at all. But in re-

viewing a probable cause determination, our scope has nev-

er been so limited. We employ a totality-of-the-

circumstances approach that reviews all the evidence, taken

together, in the context of the case at hand. See United States

v. Glover, 755 F.3d 811, 816 (7th Cir. 2014) (citing Gates, 462

U.S. at 238). The nighttime meeting, therefore, cannot be di-

vorced from the repeated use of coded language, spanning a

large period of time, and spoken over numerous telephones.

These facts, given the totality of the circumstances, evince a

No. 14-1384 11

guilty mind’s effort to escape police detection—an effort that

lends further support to the finding of probable cause.

Other evidence supports our independent finding of

probable cause. In his sixty-five page affidavit, Agent Keszei

also recounted the numerous calls and texts exchanged be-

tween Castaneda and Sewell and other associates—persons all

associated with the drug trade and positively identified

through voice recognition techniques and subscriber infor-

mation. Agent Keszei recounted the drug and cash seizures

throughout the course of the investigation, seizures precipi-

tated by (and consistent with) these recorded conversations.

And he connected Sewell as Castaneda’s associate based on

their in-person meetings and their uncanny ability to main-

tain a steady line of communication, despite swapping out

numerous telephones. Even if we discount the drug and cash

seizures as mere coincidences, at some point the “succession

of superficially innocent events had proceeded to the point

where a prudent man could say to himself that an innocent

course of conduct was substantially less likely than a crimi-

nal one.” United States v. Bernard, 623 F.2d 551, 560 (9th Cir.

1979) (citations omitted).

Sewell’s backup argument that the affidavit failed to con-

nect him to Sawmill Woods Court fares no better. “Warrants

may be issued even in the absence of direct evidence linking

criminal objects to a particular site.” United States v. Orozco,

576 F.3d 745, 749 (7th Cir. 2009). Additionally, “courts are

‘entitled to draw reasonable inferences about where evi-

dence is likely to be kept, based on the nature of the evi-

dence and the type of offense, and specifically, in the case of

drug dealers, evidence is likely to be found where the dealers live.’”

United States v. Kelly, 772 F.3d 1072, 1080 (7th Cir. 2014)

12 No. 14-1384

(quoting Orozco, 576 F.3d at 749) (emphasis added). Here, it

was entirely reasonable to infer that Sewell lived with his

wife, even if only her name appeared on the lease. Many

married couples live together, after all. And if he lived with

his wife, then it was also entirely reasonable to believe that

he operated his drug business from the home, as other drug

dealers do. See Kelly, 772 F.3d at 1080; see also United States v.

Anderson, 618 F.3d 873, 881 (8th Cir. 2010) (“Drug dealers

commonly put their property in someone else’s name to

avoid detection.”) (citation omitted).

But if more is needed, Sewell had been seen at Sawmill

Woods Court on at least three occasions, including one occa-

sion after his wife secured the protective order against him.

So even if the two had a falling out, it was reasonable to infer

that by that point the two had reconciled—a fact that in-

creases the odds that Sewell could be found there. Critically,

the identified drug supplier, Castaneda, had also been seen

at Sawmill Woods Court.

For all these reasons, Sewell’s arguments regarding prob-

able cause are unavailing. Agent Keszei’s comprehensive af-

fidavit established probable cause, and the magistrate judge

made the correct call in issuing the warrant. We will not dis-

turb it on appeal.

B. Sufficiency of the Evidence

Sewell next challenges the sufficiency of the evidence to

sustain his conviction for being a felon in possession of a

firearm under 18 U.S.C. § 922(g)(1). His hurdle on this issue

is a high one. See United States v. Bey, 725 F.3d 643, 649 (7th

Cir. 2013) (describing our deferential review to challenges

based on the sufficiency of the evidence). We overturn a

No. 14-1384 13

conviction for insufficiency of the evidence only when,

viewed in the light most favorable to the government, “the

record is devoid of evidence” from which a reasonable jury

could find the defendant guilty beyond a reasonable doubt.

United States v. Campbell, 770 F.3d 556, 568 (7th Cir. 2014).

Under this standard, we neither weigh evidence nor assess

the credibility of witnesses; that task is for the trier of fact.

United States v. Griffin, 150 F.3d 778, 784–85 (7th Cir. 1998).

We start our analysis with the statute that details the

crime. 18 U.S.C. § 922(g)(1) criminalizes a felon’s possession

of any firearm affecting interstate commerce. Accordingly,

the statute requires proof of three elements: (1) a prior felony

conviction; (2) possession of the firearm; and (3) the firearm’s

movement in interstate commerce. United States v. Ortiz, 474

F.3d 976, 982 (7th Cir. 2007). Notably, possession may be ei-

ther constructive or actual. United States v. Villasenor, 664 F.3d

673, 681 (7th Cir. 2011).

Here, Sewell contests only possession. In support, he ar-

gues that no one testified to having seen him with the re-

volver. And he advances the testimony of his wife who

claimed that the revolver belonged to her. Evidently then,

Sewell would have us re-weigh the evidence and make cred-

ibility determinations. But we cannot employ that wide

scope of review at this stage of his case. Griffin, 150 F.3d at

784–85.

The authorities found a loaded revolver underneath

Sewell’s bed. That fact is sufficient to affirm a finding of con-

structive possession, which “exists when a person knowing-

ly has the power and the intention at a given time to exercise

dominion and control over an object, either directly, or

through others.” United States v. Caldwell, 423 F.3d 754, 758

14 No. 14-1384

(7th Cir. 2005) (citations omitted); see also Campbell, 770 F.3d

at 568 (requiring reversal only where the record is “devoid

of evidence”). We emphasize that Sewell told the authorities

exactly where to find the revolver. And based on his state-

ment to Officer Angela Reed of the Fort Wayne Police De-

partment, he had both the power and the intention to use it.

“If it wasn’t you all running up in here,” Sewell said, “I

would be using my gun for my protection, you know what I

mean.”

The jury credited Officer Reed’s testimony detailing this

admission. Conversely, it discredited Sewell’s wife’s testimo-

ny, likely based on her inability to recall simple details about

the revolver such as its caliber and strength of recoil. Sewell

may quibble with these credibility findings, but once again,

we may not. United States v. Green, 648 F.3d 569, 578 (7th Cir.

2011) (“We do not weigh the evidence on review or second-

guess the jury’s credibility determinations.”). Viewing the

evidence in the light most favorable to the government, the

record is not devoid of evidence from which a reasonable ju-

ry could find Sewell guilty beyond a reasonable doubt of be-

ing a felon in possession of a firearm affecting interstate

commerce.

C. Sentence Enhancements

Sewell next challenges the sentence enhancements ap-

plied by the district court. We review a district court’s appli-

cation of the federal sentencing guidelines de novo, United

States v. Hinds, 770 F.3d 658, 662 (7th Cir. 2014), and we re-

view its factual findings for clear error, United States v. Walsh,

723 F.3d 802, 807 (7th Cir. 2007). At trial, a district court need

only find by a preponderance of the evidence facts sufficient

to support the enhancement. United States v. Belk, 435 F.3d

No. 14-1384 15

817, 819 (7th Cir. 2006). We will affirm a sentence enhance-

ment unless the evidence leaves us with a “definite and firm

conviction that a mistake has been made.” United States v.

Johnson, 489 F.3d 794, 796 (7th Cir. 2007). Here, we find no

mistake in the imposition of either the firearm or the drug-

quantity enhancement.

1. Firearm Enhancement

We begin with the firearm enhancement. The district

court determined that Sewell possessed a firearm in connec-

tion with his drug dealing, a decision that resulted in an of-

fense level of 34 under U.S.S.G. § 4B1.4(b)(3)(A). Sewell chal-

lenges the district court’s imposition of that enhancement.

He argues that the firearm was for self-defense only.

Section 4B1.4(b)(3)(A) calls for an enhanced base offense

level of 34 “if the defendant used or possessed the firearm …

in connection with … a controlled substance offense.” (em-

phasis added). The jury decided that Sewell possessed the

firearm, a finding we leave undisturbed here. The only re-

maining question, then, is whether Sewell possessed that

firearm “in connection with” his cocaine offense. We hold

that he did.

This court defines the phrase “in connection with” rather

“expansively.” United States v. Wyatt, 102 F.3d 241, 247 (7th

Cir. 1996) (“So long as … the firearm served some purpose

with respect to the felonious conduct,” the “’in connection

with’ requirement is satisfied; conversely, where the fire-

arm’s presence is merely coincidental to that conduct, the re-

quirement is not met.”). As such, “when guns are possessed

along with the materials of a drug trafficker, it is a reasona-

ble inference that the guns protect or embolden the criminal

16 No. 14-1384

enterprise.” United States v. LePage, 477 F.3d 485, 489 (7th Cir.

2007). That is what happened here.

When the authorities searched Sewell’s home, they not

only found the loaded revolver underneath the bed. They

also found scales, drug ledgers, cutting agents for cocaine,

marijuana, and a large sum of cash in the dishwasher. These

are the signs of a drug dealer, so it is reasonable to infer that

the loaded revolver was meant to “protect or embolden the

criminal enterprise.” LePage, 477 F.3d at 489.

In LePage, police found a sawed-off shotgun in a duffle

bag that also happened to contain large quantities of a cut-

ting agent designed to dilute methamphetamine. Id. at 489.

We reasoned that the presence of the cutting agent was “con-

sistent with being a dealer and not simply a casual user of

the drug.” Id. So we affirmed the district court’s imposition

of the enhancement.

Although Sewell’s firearm was located in his upstairs

bedroom, it was still easily accessible to him. On this point,

the district court made a relevant finding of fact: “The gun

was found under the Defendant’s side of the bed and was

loaded. In this location and condition the gun was readily

accessible to the Defendant and capable of being fired in-

stantaneously.” United States v. Sewell, No. 1:11-CR-35, 2013

U.S. Dist. LEXIS 170102, at *16–17 (N.D. Ind. Dec. 3, 2013).

Sewell points to no evidence, and we find none, to character-

ize this finding as clearly erroneous.

Additionally, the firearm need not be found lying imme-

diately next to the drugs or drug-dealing materials for the

enhancement to apply. Analyzing a similar enhancement

under U.S.S.G. § 2D1.1(b)(1) (possession of a firearm during

No. 14-1384 17

the commission of an offense), we affirmed where three fire-

arms were found in the same residence as cocaine, cutting ma-

terials, scales, and other drug-dealing materials. United States

v. Franklin, 896 F.2d 1063, 1065–66 (7th Cir. 1990). The Ninth

Circuit has affirmed under similar circumstances. United

States v. Restrepo, 884 F.2d 1294, 1295–96 (9th Cir. 1989) (af-

firming § 2D1.1(b)(1) enhancement where police found gun

“hidden between the mattress and box spring of his bed”

and numerous drugs and drug-dealing materials in the rest

of the residence).

In sum, Sewell’s argument is without merit. The fact that

no one testified to seeing him use or possess the revolver in

any drug transactions does little, if anything, to combat the

overwhelming physical evidence found at Sawmill Woods

Court. Moreover, this court has never required such testi-

mony to support a § 4B1.4(b)(3)(A) enhancement. For all

these reasons, we find no error in the imposition of the fire-

arm enhancement.

2. Drug-Quantity Enhancement

Sewell also challenges the district court’s imposition of a

drug-quantity enhancement, which resulted in a base of-

fense level of 34 for Count 2 under U.S.S.G. § 2D1.1(c)(3). To

apply a base offense level of 34 under that section, a district

court must find that a defendant possessed at least 15 kilo-

grams but less than 50 kilograms of cocaine. Id. Here, the

district court found that Sewell possessed between 30 and 40

kilograms of cocaine. Despite Sewell’s arguments to the con-

trary, the district court’s finding is not clearly erroneous.

Determining how much of a particular drug a defendant

possessed, over a lengthy period of time, is not an exact sci-

18 No. 14-1384

ence. This fact is reflected in the Drug Quantity Table, which

provides ranges, rather than precise weights, to determine

proper base offense levels. U.S. Sentencing Guidelines Man-

ual § 2D1.1(c) (2013). It is also reflected in our precedent. For

example, a district court is allowed to make reasonable esti-

mates of drug quantity based on the record before it. United

States v. Acosta, 534 F.3d 574, 582 (7th Cir. 2008). Estimates

are reasonable if they are grounded in “evidence possessing

… sufficient indicia of reliability and not nebulous eye-

balling.” United States v. Durham, 211 F.3d 437, 444 (7th Cir.

2000) (internal quotation marks and citation omitted). Nota-

bly, witness testimony falls within that category of evidence.

United States v. Clark, 538 F.3d 803, 812–13 (7th Cir. 2008) (af-

firming district court’s determination of drug quantity where

the court relied on witness testimony).

Here, Detective Martinez testified that, during the course

of his pre-trial interview with Castaneda, Castaneda admit-

ted to supplying Sewell with approximately 30 to 40 kilo-

grams of cocaine from 2008 to 2011. The district court credit-

ed this testimony. Indeed, the district court’s finding that

Sewell possessed 30 to 40 kilograms of cocaine flows directly

from it. It may be an estimate, but given this record, it is a

reasonable one. We find no reason to disturb it on appeal.

See Clark, 538 F.3d at 813 (“[A] sentencing court may credit

testimony that is totally uncorroborated and comes from an

admitted liar, convicted felon, or large scale drug-dealing,

paid government informant.”) (internal quotation marks and

citation omitted). Further, that the testimony came in hear-

say form gives us no pause. District courts may rely on hear-

say testimony in formulating an appropriate sentence, “pro-

vided that the information has sufficient indicia of reliability

No. 14-1384 19

to support its probable accuracy.” Id. at 813–814 (quoting

U.S.S.G. § 6A1.3(a)).

Regarding the reasonableness of the district court’s esti-

mate, we note that Sewell and Castaneda met more than fifty

times to exchange drugs and money. We also note that the

search of Sawmill Woods Court revealed drug-dealing mate-

rials consistent with substantial quantities of cocaine: cutting

agents lidocaine and inositol; a drug ledger containing the

words “cut coke”; two scales; plastic wrap with cocaine resi-

due; and $19,900 in cash in the dishwasher, among other

items. These facts lend “sufficient indicia of reliability” to the

district court’s finding that Sewell possessed 30 to 40 kilo-

grams of cocaine. Durham, 211 F.3d at 444.

Sewell disagrees. He highlights other portions of

Castenada’s interview with Detective Martinez, and argues

for a base offense level of 32, resulting from a drug quantity

of at least 5 kilograms but less than 15 kilograms of cocaine.

Sewell’s math is relatively straightforward: Castaneda told

Detective Martinez that he went to Sewell’s residence 4 times

to deliver cocaine, and that Sewell went to Castaneda’s

residence 4 times to pick up cocaine, for a total of 8

transactions. Castaneda also told Detective Martinez that

their largest single transaction was 3 kilograms. Sewell

argues that even if each of these transactions involved 3

kilograms (the largest amount), the total amount could not

equal the district court’s finding of 30 to 40 kilograms.

We reject this argument. In doing so, we emphasize that a

district court’s estimate on drug quantity, especially in a case

like this one (where numerous drug transactions occurred

over a lengthy period of time), need only be reasonable—not

absolutely precise. Based on this record, the district court

20 No. 14-1384

made a reasonable estimate. In fact, the conservative end of

its estimate—30 kilograms—is twice the amount needed to

qualify for a base offense level of 34. And even if Sewell’s

math adds up, he discounts the other reasonable and possi-

ble equations—based on his preferred numbers—that still

bring him over the threshold of 15 kilograms.

In sum, the experienced district court judge did not clear-

ly err in determining that Sewell’s criminal activity involved

at least 15 kilograms but less than 50 kilograms of cocaine.

D. Conditions of Supervised Release

Although Sewell does not challenge his conditions of su-

pervised release, we find we must vacate them and remand

for re-sentencing in light of our recent decisions in United

States v. Thompson, Nos. 14-1316, 14-1521, 14-1676, 14-1772,

2015 U.S. App. LEXIS 604 (7th Cir. Jan. 13, 2015), and United

States v. Siegel, 753 F.3d 705 (7th Cir. 2014). Thompson and

Siegel presented conditions of supervised release that are vir-

tually identical to the ones here.

In Siegel, we vacated a number of conditions of super-

vised release that were “inappropriate, inadequately de-

fined, or imposed without the sentencing judge’s having jus-

tified them by reference to the sentencing factors in 18 U.S.C.

§ 3553(a).” Id. at 717. In Thompson, we reiterated our concern

regarding these vague conditions, as well as the manner in

which they are imposed. See generally 2015 U.S. App. LEXIS

604 (addressing four cases consolidated on appeal).

We cannot overlook the presence of plain error. United

States v. Muriel, 418 F.3d 720, 723 n.1 (7th Cir. 2005) (“A court

of appeals may notice plain error even though the error was

not brought to the court’s attention.” (citing Fed. R. Crim. P.

No. 14-1384 21

52(b))). Relevant to the case at hand, the error need not be

clear or obvious—or exist at all—at the time of sentencing.

The error must, however, be “clear and uncontroverted at the

time of appeal.” United States v. Ross, 77 F.3d 1525, 1539 (7th

Cir. 1996) (citing Fed. R. Crim. P. 52(b) (emphasis added)). It

must also affect substantial rights and “seriously impugn the

fairness, integrity, or public reputation of judicial proceed-

ings.” United States v. Cary, 775 F.3d 919, 923 (7th Cir. 2014).

That is what we have here.

1. The Standard Conditions

The district court briefly imposed fifteen standard condi-

tions of supervised release. “Further,” the district court be-

gan, “the defendant shall comply with the 15 standard con-

ditions that have been adopted by this court.” (Sent. Tr. 14.)

As in Thompson, the district court did not offer a reason for

the imposition of these conditions. 2015 U.S. App. LEXIS 604

at *27–28 (“He gave no reasons for any of them. All he said

was: ‘The standard conditions are adopted by the Court.’”).

We note that this procedure has generally been the norm.

But now, for the reasons we recently articulated in Thompson,

this approach to sentencing requires a remand.

It is not just the brief reference to the standard condi-

tions; the conditions themselves also offend Thompson. The

district court, for example, ordered Sewell to “answer truth-

fully all inquiries by the probation officer,” and to “permit a

probation officer to visit” him “at any time at home or else-

where … .” But recently, in Thompson, we found these same

conditions to be “too broad in the absence of any effort by

the district court to explain why they are needed.” Id. at *25.

The same is true for these other conditions, which we now

paraphrase:

22 No. 14-1384

 support dependents and meet family responsibilities;

 do not frequent places where controlled substances are

illegally sold, used, distributed, administered;

 do not associate with any persons engaged in criminal

activity or persons convicted of a felony; and

 notify third parties of the risks occasioned by his crim-

inal record or personal history or characteristics.

Id. at *16–17. Under Thompson, these standard conditions

must now be defined to provide a defendant with proper

notice.

2. The Special Conditions

Likewise, the special conditions also require a remand.

Consider the prohibition on mood-altering substances. In

Siegel, we noted that this prohibition could proscribe every-

thing from coffee to chocolate to blueberries, substances that

“are not causal factors of recidivist behavior.” 753 F.3d at

713–715. The General Equivalency Degree (GED) condition

fares no better. The district court ordered Sewell to “obtain

his GED at the direction of the probation officer.” (Sent. Tr.

15.) But there are at least two problems with this condition.

The first is that it is impossible to require someone to pass a

test (the GED requires five tests), “unless cheating is permit-

ted.” Thompson, 2015 U.S. App. LEXIS 60, at *30 (“This is an

example of an improper condition of supervised release that

could be fixed by changing a single word”). The second

problem, at least on this record, is applicability. See Hinds,

770 F.3d at 667. An exchange between the district court and

Sewell highlights our concern:

No. 14-1384 23

The Court: The defendant shall participate in a

general equivalency degree, GED preparation course

and obtain his GED at the discretion --

Defendant: I have a GED.

The Court: -- of the probation officer.

(Sent. Tr. 15 (emphasis added).) On remand, the district court

will have the opportunity to examine the applicability of

these conditions before they are re-imposed.

In sum, the general rule with regard to conditions of su-

pervised release now requires that they are to fit the peculiar

circumstances of the defendant being sentenced. They must

also be defined in a way that puts defendants on notice of

proscribed behavior. As a result, for the reasons we recently

articulated in Thompson and Siegel, Sewell’s sentence requires

remand for reconsideration of the conditions of supervised

release. Siegel, 753 F.3d at 717 (“So the prison sentences …

stand, but the cases must be remanded for reconsideration of

the conditions of supervised release”).

III. CONCLUSION

We AFFIRM in part and VACATE in part. We AFFIRM

the probable-cause determination of the magistrate judge

and judgment of the district court regarding Sewell’s guilt as

a felon in possession of firearm. We further AFFIRM the fire-

arm enhancement under U.S.S.G. § 4B1.1(b)(3)(A) and the

drug-quantity enhancement under U.S.S.G. § 2D1.1(c)(3). We

VACATE, however, each of Sewell’s conditions of supervised

release. We VACATE each condition because reconsideration

of some conditions may impact the imposition of others. The

sentenced is AFFIRMED in every other respect. The case is

24 No. 14-1384

REMANDED to the district court for proceedings consistent

with this opinion.