United States v. Kenneth Sandidge

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 14-1492

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENNETH SANDIDGE,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:12-cr-00159 — Rudy Lozano, Judge.

____________________

ARGUED DECEMBER 5, 2014 — DECIDED APRIL 20, 2015

____________________

Before FLAUM, EASTERBROOK, and KANNE, Circuit Judges.

KANNE, Circuit Judge. In December 2013, Appellant Ken-

neth Sandidge pled guilty to one count of being a felon in

possession of a firearm. On appeal, he raises four challenges

to his sentence. He argues that the district court erred: (1) in

applying a 4-level enhancement to his base offense level; (2)

in denying him a 3-level reduction in his base offense level;

(3) in imposing his federal sentence to run consecutively

with an undischarged state sentence; and (4) in imposing a

2 No. 14-1492

number of conditions of supervised release. For the reasons

that follow, we affirm in part and vacate and remand in part.

I. BACKGROUND

During the early morning hours of April 22, 2012, sher-

iff’s deputies from Lake County, Indiana, responded to an

emergency call on the 4400 block of Grant Street in Gary, In-

diana. During that response, the officers discovered and con-

fiscated a loaded .32 caliber Smith & Wesson revolver in

Sandidge’s residence. Because Sandidge had previously been

convicted of a crime punishable by a term of imprisonment

exceeding one year, subsection (g)(1) of 18 U.S.C. § 922 pro-

hibited him from possessing that firearm. Sandidge pled

guilty to one count of violating that statute on December 2,

2013, pursuant to an open plea.

The U.S. Probation Department (“Probation”) prepared a

presentence investigation report (“PSR”) in advance of San-

didge’s sentencing hearing. Probation calculated a base of-

fense level of 20, per U.S.S.G. § 2K2.1(a)(4), because San-

didge obtained this felon-in-possession conviction after hav-

ing previously been convicted of a crime of violence. 1

Probation recommended applying a 4-level enhancement

to Sandidge’s base offense level, pursuant to U.S.S.G.

§ 2K2.1(b)(6)(B). That section provides for a 4-level increase

to a defendant’s base offense level if he used or possessed the

subject firearm “in connection with another felony offense.”

U.S.S.G. § 2K2.1(b)(6)(B). Probation contended that during

the incident that led to the April 22 emergency call, Sandidge

1 In 2007, Sandidge was convicted in Lake County, Indiana, of pointing a

loaded firearm. See Case No. 45G011006FC00071.

No. 14-1492 3

had pointed the loaded revolver at another person. If he had,

that would constitute a felony violation of Indiana law, and

would render him eligible for the 4-level enhancement. See

I.C. 35-47-4-3(b) (“A person who knowingly or intentionally

points a firearm at another person commits a Class D felo-

ny.”). Sandidge timely submitted written objections to the

application of this enhancement.

Per U.S.S.G. § 3E1.1, Probation also recommended a 3-

level reduction to Sandidge’s base offense level for ac-

ceptance of responsibility. This, combined with the 4-level

enhancement, resulted in a recommended offense level of 21.

Sandidge had 10 criminal history points, and a consequent

criminal history category of V. Sandidge’s resultant recom-

mended Guidelines range was 70 to 87 months’ imprison-

ment.

A. Officer William Poe’s Testimony

Sandidge’s sentencing hearing was held on February 26,

2014. First at issue was the imposition of the 4-level firearm

enhancement. In order for the enhancement to apply, the

government was required to prove by a preponderance of

the evidence that Sandidge had pointed the loaded firearm

at another person. That fact would establish that the firearm

was used “in connection with another felony” under

U.S.S.G. § 2K2.1(b)(6)(B). Sandidge denied having done so.

The government offered the testimony of two witnesses,

as well as documentary evidence, to prove the conduct un-

derlying the enhancement. The district court first heard tes-

timony from Officer William Poe of the Lake County Sher-

iff’s Department. Through direct and cross-examination, as

well as through questioning by the district judge, Officer Poe

4 No. 14-1492

testified to the following account of the events of April 22,

2012.

At 3:26 a.m., Officer Poe was dispatched to 4454 Grant

Street in Gary, Indiana. The dispatch was based on an emer-

gency call reporting that a female subject was running and

screaming down Grant Street. She was knocking on doors,

begging for help and for someone to call the police. Officer

Poe made contact with the subject—Barbara Harris—as soon

as he arrived. Consistent with the initial report, Officer Poe

found Harris crying, distraught, and frightened.

Harris told Officer Poe that a black male had chased her

with a gun and had attempted to kill her. She recounted that

she had been drinking with that man, whom she knew as

“Kenny Mo,” and that she had fled from his residence.

While she did not know the precise address of the house, she

was able to provide Officer Poe with its general location and

description. Officer Poe placed Harris in the back of his po-

lice vehicle, and they began to drive up Grant Street toward

the residence.

As Officer Poe and Harris drove, another sheriff’s deputy,

Officer Solomon, stopped a black male who was riding a bi-

cycle along Grant Street. Officer Solomon identified the sub-

ject as Kenneth Sandidge. The officer ran a warrant check on

Sandidge and released him when no warrants were discov-

ered. Officer Poe and Harris witnessed that stop from inside

Officer Poe’s police vehicle. 2 From her vantage point in the

vehicle, Harris indicated that she could not get a good look

2 The details regarding the timing of Harris and Officer Poe’s arrival on

the scene and their proximity to the stop are not clear from the record.

No. 14-1492 5

at the subject who was stopped, so she could not say wheth-

er Sandidge was the man she knew as Kenny Mo.

Officer Poe and Harris then continued to drive along

Grant Street and ultimately arrived at the residence identi-

fied by Harris as Kenny Mo’s. After running the license plate

of a vehicle parked in front, Officer Poe discovered it was

registered to Kenneth Sandidge. He pulled up a photo of

Sandidge on his in-vehicle computer system, and Harris

identified him as Kenny Mo.

Officer Poe called for backup officers, and as he waited

for them to arrive, Harris provided the following additional

details of the evening’s events. According to Harris, earlier

that evening, Sandidge had picked her up from her home

and brought her to his Grant Street residence. While seated

on a leather couch in Sandidge’s living room, the two had a

few drinks. Sandidge drank wine, and Harris drank two

shots of vodka. Harris described the layout of Sandidge’s

home and stated that a black dog was chained in the kitchen

area. She also stated that Sandidge told her he had recently

been released from jail.

At some point in the evening, Sandidge went into his

bedroom to change clothes and emerged wearing a robe. He

then told Harris to take off her clothes and make herself

comfortable. After advising Sandidge that she “wasn’t there

for that,” Harris tried to leave. A struggle ensued, with San-

didge pulling Harris’s jacket and pushing her down on the

couch. He went back into his bedroom and returned holding

a silver revolver, which he pointed at Harris’s head. He told

her she was not leaving, and that “[people] are dropping like

flies around here. I’m not playing with you.”

6 No. 14-1492

Sandidge then sat down next to Harris on the couch and

advised her to “give him head.” Harris refused, and another

struggle ensued. She was able to escape from the residence

through the front door as Sandidge threatened to release his

dog on her. She ran down Grant Street, and was able to gain

the assistance of another resident, who called the police.

Harris told Officer Poe that she did not engage in any sexual

activity with Sandidge, despite his attempts to force such

contact.

When Officer Solomon arrived as backup, he and Officer

Poe made contact with Sandidge at his residence. Sandidge

first denied any involvement with Harris. After continued

discussion, Sandidge changed his story, saying that Harris

had been there to clean his house. He stated that she left be-

cause she became ill. After being questioned as to why Har-

ris would be cleaning Sandidge’s home at 3:00 in the morn-

ing, Sandidge stated that he would “come out and tell the

truth.” He said that he and Harris had first been drinking at

the home of another individual, and had then relocated to

Sandidge’s house. He acknowledged that he was “trying to

hook up with” Harris, hoping to engage in sexual inter-

course or oral sex. She had become ill, however, and left.

When asked why he had been riding his bike down the

block at 3:00 in the morning, Sandidge told Officer Poe that

he “does that sometimes.”

In Sandidge’s living room, the officers discovered in plain

view a silver .32 caliber Smith & Wesson revolver wedged

between the cushions of a leather couch. It was fully loaded.

The officers seized the weapon, and Harris identified that

firearm as being the one Sandidge pointed at her during

their encounter.

No. 14-1492 7

B. Other Evidence Offered at the Sentencing Hearing

Following Officer Poe’s testimony, the court then heard

testimony from Special Agent Jason Gore of the Bureau of

Alcohol, Tobacco, Firearms and Explosives (“ATF”). Agent

Gore conducted a recorded interview of Harris in October

2012. He testified to the following account of that interview. 3

On April 22, Harris was at the home of a man named

Don, along with several other individuals, when Sandidge

arrived. Sandidge came with the apparent purpose of selling

crack cocaine. Sandidge collected money from those present

who wished to buy crack. He indicated that he would leave

to make the buy and would return with the drugs. Harris

accompanied Sandidge in order to ensure he did not ab-

scond with the money or the drugs.

After completing the drug buy, Harris and Sandidge

drove to Sandidge’s house. Sandidge indicated that he need-

ed to feed his dog and complete a few other short errands.

Sandidge and Harris had a few drinks. At some point, San-

didge entered his bedroom and emerged wearing a robe. He

then attempted to force Harris to perform oral sex on him.

When she refused, he retrieved a silver revolver from his

bedroom and pointed it at her head. Sandidge then sexually

assaulted her at gunpoint, first on the couch, and then in his

bedroom.

Following the assault, a woman knocked on Sandidge’s

door. As Sandidge spoke to the woman, Harris put on her

3 As Sandidge’s arguments on appeal concern the ways in which Har-

ris’s accounts to Officer Poe and Agent Gore differed, we largely confine

our discussion to those relevant facts.

8 No. 14-1492

clothes. When Sandidge unlocked the front door in order to

speak to the newly arrived woman, Harris pushed past him

and ran outside.

After hearing the testimony from Officer Poe and Agent

Gore, the judge took a recess in order to listen to the record-

ed interview between Agent Gore and Harris. He also re-

viewed the other materials submitted by the parties, includ-

ing the investigative reports written by Agent Gore and Of-

ficer Poe.

C. Imposition of Sentence

After returning from recess, the district court heard San-

didge’s objections to the imposition of the 4-level firearm en-

hancement. Sandidge argued that he never pointed the load-

ed firearm at Harris and that the government had not met its

burden to prove that the felonious conduct had occurred.

Sandidge’s arguments focused on the differences between

Harris’s two accounts of the April 22 events, as related to Of-

ficer Poe and Agent Gore. Because those accounts differed,

Sandidge argued, Harris must be a liar. As such, the argu-

ment goes, the information provided by her was neither reli-

able nor credible. Sandidge emphasized his opinion that the

government chose not to call Harris as a sentencing witness

in an attempt to shield her from an adverse credibility de-

termination by the district court.

After hearing Sandidge’s objections and the government’s

response, the court found by a preponderance of the evi-

dence that Sandidge had pointed a loaded firearm at Harris

during the April 22 incident. Consequently, the court found

that the firearm was used in connection with another felony.

No. 14-1492 9

Because that act constituted a felony violation of Indiana

law, the court applied the 4-level enhancement.

The court then heard related argument as to whether

Sandidge should receive a 3-level reduction under U.S.S.G.

§ 3E1.1 for acceptance of responsibility. The government ar-

gued that Sandidge was no longer eligible for the ac-

ceptance-of-responsibility reduction because he had falsely

denied “relevant conduct”—that he had pointed the loaded

weapon at Harris. Sandidge asked the court to exercise its

discretion to grant him the 3-level reduction, arguing that he

had accepted responsibility for possessing the firearm. The

court found that Sandidge had falsely denied the relevant

conduct, and it denied Sandidge the 3-level reduction.

The court then calculated Sandidge’s Guidelines range.

With the base offense level of 20, 4-level enhancement, and

denial of the 3-level reduction, the court determined San-

didge’s offense level to be 24. That, combined with his crimi-

nal history category V, resulted in a recommended range of

92 to 115 months’ imprisonment.

Sandidge requested a below-Guidelines sentence of 46

months, arguing that a within-Guidelines sentence would be

excessive. He also requested that his federal sentence be im-

posed to run concurrently with an unrelated state sentence

that he was serving at that time.

The court sentenced Sandidge to a period of 92 months’

incarceration, to be served consecutively with his undis-

charged state sentence. It also imposed a period of 2 years’

supervised release, subject to a number of supervised release

conditions.

10 No. 14-1492

II. ANALYSIS

Sandidge challenges four aspects of his sentence: (1) the

application of the 4-level enhancement; (2) the denial of the

3-level reduction for acceptance of responsibility; (3) the im-

position of his federal sentence to run consecutively with his

undischarged state sentence; and (4) the imposition of cer-

tain conditions of supervised release. We consider each in

turn.

A. The 4-Level Enhancement

On appeal of a sentencing enhancement, we review the

sentencing court’s factual findings for clear error. United

States v. McCauley, 659 F.3d 645, 652 (7th Cir. 2011). We will

reverse a district court’s factual findings “only if a review of

the evidence leaves us with the definite and firm conviction

that a mistake has been made.” United States v. Johnson, 765

F.3d 702, 708 (7th Cir. 2014) (quoting United States v. Johnson,

489 F.3d 794, 796 (7th Cir. 2007)) (internal quotation marks

omitted). We review de novo the application of those factual

findings to the Sentencing Guidelines. McCauley, 659 F.3d at

652.

U.S.S.G. § 2K2.1 outlines the base offense level calcula-

tion for crimes involving the unlawful receipt, possession, or

transportation of firearms or ammunition. See U.S.S.G.

§ 2K2.1. Subsection 2K2.1(b)(6)(B) provides that “[i]f the de-

fendant used or possessed any firearm or ammunition in

connection with another felony offense,” the base offense

level for the unlawful possession should be increased by

four levels. U.S.S.G. § 2K2.1(b)(6)(B). The Guidelines define

the term “another felony offense” to include “any federal,

state, or local offense, other than the explosive or firearms

No. 14-1492 11

possession or trafficking offense, punishable by imprison-

ment for a term exceeding one year.” U.S.S.G. § 2K2.1

n.14(C). This enhancement may be applied regardless of

whether a charge was brought or a conviction obtained for

the other felony offense. Id. In order to apply the enhance-

ment, the government bears the burden of proving by a pre-

ponderance of the evidence that the felonious conduct oc-

curred. Johnson, 765 F.3d at 708.

In making its factual determinations, a sentencing court

“may consider relevant information without regard to the

rules of evidence … provided that the information has suffi-

cient indicia of reliability to support its probable accuracy.”

United States v. Hankton, 432 F.3d 779, 789 (7th Cir. 2005)

(quoting United States v. Lemmons, 230 F.3d 263, 267 (7th Cir.

2000)) (internal quotation marks omitted); see also U.S.S.G.

§ 6A1.3. The court may, for example, consider hearsay evi-

dence that would be inadmissible at trial. See United States v.

Davila-Rodriguez, 468 F.3d 1012, 1014 (7th Cir. 2006); United

States v. Roche, 415 F.3d 614, 618 (7th Cir. 2005).

Sandidge argues that the district court clearly erred in its

factual finding that he pointed a loaded firearm at Harris.

Sandidge contends that this finding is clearly erroneous, be-

cause the district court relied on unreliable hearsay evidence

in reaching its conclusion. As such, Sandidge argues that the

application of the 4-level enhancement was improper.

Specifically, Sandidge takes issue with portions of the tes-

timony provided by Officer Poe and Agent Gore. He seems

to concede that the officers were credible witnesses, as were

their accounts of the events they personally saw or partici-

pated in. Sandidge challenges, however, the court’s consid-

12 No. 14-1492

eration of Harris’s hearsay statements as relayed by the of-

ficers.

Sandidge appears to argue that because Harris’s accounts

to Officer Poe and Agent Gore differed in some respects, any

and all of Harris’s statements were necessarily unreliable: in

short, the discrepancies in her stories rendered the entire ac-

counts unreliable, and therefore inadmissible. Indeed, San-

didge claims that there was “no reliable evidence” corrobo-

rating Harris’s claim that Sandidge pointed the weapon at

her. Without corroborating evidence, he argues, Harris’s

statements were “mere allegations” that must be wholly dis-

regarded. Therefore, he argues, the district court clearly

erred when it credited portions of Harris’s hearsay state-

ments. We disagree.

To begin, sentencing evidence need not be fully corrobo-

rated for a district court to credit it. See United States v. Clark,

538 F.3d 803, 813 (7th Cir. 2008) (“[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). Moreover, as we have previous-

ly held, a sentencing court clearly errs in considering hear-

say evidence “only if the evidence was devoid of any indicia of

reliability.” United States v. Sanchez, 507 F.3d 532, 538 (7th Cir.

2007) (emphasis added). Indicia of reliability “may come

from, inter alia, the provision of facts and details, corrobora-

tion by or consistency with other evidence, or the opportuni-

ty for cross-examination.” United States v. Smith, 674 F.3d 722,

732 (7th Cir. 2012) (internal citations omitted).

The district court thoroughly reviewed all the evidence

before it. Based on this review, it found Harris’s provision of

No. 14-1492 13

facts and details to be sufficiently reliable. The court noted

numerous elements of Harris’s accounts that were consistent

with each other, including: (1) her identification of Sandidge

as the perpetrator; (2) her description of the interior of San-

didge’s residence; (3) her description of the gun as a silver

revolver; (4) her contention that Sandidge pointed the weap-

on at her head as he sought to engage in sexual activity with

her; and (5) her statements that Harris and Sandidge had

been drinking together while at his residence.

The court also described portions of Harris’s accounts

that had been corroborated by other evidence, including:

(1) that the interior of Sandidge’s home matched her descrip-

tion; (2) that Sandidge had in fact been recently released

from jail, as he indicated to Harris; (3) that Sandidge admit-

ted to Officers Poe and Solomon that he had been hoping to

engage in sexual conduct with Harris; (4) that a silver re-

volver was found on the leather couch described by Harris;

and (5) that Sandidge was found riding his bicycle down

Grant Street immediately after Harris left his home.

In addition, the court considered Sandidge’s explanation

of the April 22 events. It concluded that his account was not

credible. The court noted Sandidge’s multiple and changing

stories about whether and why Harris was in his home that

evening. It also found incredible Sandidge’s explanation for

his late-night bicycle ride, as well as his contention that Har-

ris had left that night due to illness.

And finally, the court acknowledged and then weighed

the inconsistencies in Harris’s accounts. Sandidge’s attorney

brought a number of discrepancies to the attention of the

court throughout the sentencing hearing. After consideration

of all of the evidence, the court found that Harris’s account

14 No. 14-1492

was credible, particularly regarding what it identified as the

“main allegation that the defendant used a firearm to de-

mand sex and pointed the firearm at the victim.”

We agree with the district court. To be sure, Harris’s ac-

counts contained some discrepancies. But those inconsisten-

cies did not render the entirety of her statements devoid of

credibility or reliability. The accounts provided by Harris

supplied the court with sufficient facts and details that were

both internally consistent and corroborated by other evi-

dence. Harris’s hearsay statements were sufficiently reliable

to be considered at sentencing, and the court had before it

sufficient corroborating evidence to so conclude.

Because the court did not commit clear error when it

concluded that Sandidge pointed the loaded firearm at Har-

ris, the application of the 4-level enhancement was proper.

B. The 3-Level Reduction

As with an enhancement, we review for clear error a sen-

tencing court’s factual findings regarding an acceptance-of-

responsibility reduction. United States v. Davis, 442 F.3d 1003,

1009 (7th Cir. 2006).

U.S.S.G. § 3E1.1 provides that if a defendant “clearly

demonstrates acceptance of responsibility for his offense,”

then he is eligible for a decrease of either two or three of-

fense levels. To qualify for the reduction, a defendant must

“(1) demonstrate sincere remorse or contrition, (2) truthfully

admit the conduct comprising the offense, and (3) neither

falsely deny nor frivolously contest relevant conduct.” Unit-

ed States v. Eschman, 227 F.3d 886, 891 (7th Cir. 2000). Here,

Sandidge pled guilty to possession of the firearm, but, as

discussed above, he denied having pointed that firearm at

No. 14-1492 15

Harris. The district court concluded that: (1) Sandidge point-

ed the loaded firearm at Harris; (2) Sandidge falsely denied

that conduct; and (3) the gun-pointing was “relevant con-

duct” for purposes of U.S.S.G. § 3E1.1. The district court

therefore concluded that Sandidge was not entitled to the 3-

level reduction.

Sandidge argues that he should have been given the 3-

level acceptance-of-responsibility reduction. He seems to

concede that, had he actually pointed the firearm at Harris,

such actions would constitute “relevant conduct” under the

Guidelines. Sandidge’s argument on appeal, then, piggy-

backs entirely on his contention that the district court erred

in concluding that he pointed the loaded firearm at Harris.

He argues that because that finding was erroneous, so was

the denial of the acceptance-of-responsibility reduction.

We already concluded above that the district court did

not clearly err in finding that Sandidge pointed the loaded

firearm at Harris. It follows that the district court did not err

in denying Sandidge the 3-level acceptance-of-responsibility

reduction.

C. Consecutive v. Concurrent Sentences

At the time of sentencing for his federal offense, San-

didge was serving an unrelated state term of imprisonment.

Under the version of U.S.S.G. § 5G1.3(c) then in effect, the

district court had discretion to impose Sandidge’s federal

sentence to run concurrently, partially concurrently, or con-

secutively to his undischarged state term. 4 The Guidelines

4 The Guidelines have since been amended. Effective November 1, 2014,

the provision formerly housed in U.S.S.G. § 5G1.3(c) is now contained in

subsection (d).

16 No. 14-1492

offer these options to allow the court to “achieve a reasona-

ble punishment for the instant offense.” U.S.S.G. § 5G1.3(c).

As described above, the court correctly calculated San-

didge’s Guidelines range of imprisonment as 92 to 115

months. Sandidge requested a below-Guidelines sentence of

46 months. At the sentencing hearing, his counsel outlined

Sandidge’s significant physical and mental health issues. In

addition, counsel noted that Sandidge had admitted to pos-

session of the offending firearm. Counsel then stated:

I think that a sentence within the guidelines range is

much too excessive in this case. It’s just not necessary

to promote any of the statutory purposes of sentenc-

ing. I would note that Mr. Sandidge is serving a state

sentence right now … I would at least ask that Mr.

Sandidge be given time in this case concurrent to the

time that he has in that case.

Sandidge himself then made a statement. The government

made its arguments opposing the requested 46-month sen-

tence. After recounting Sandidge’s extensive criminal history,

the government recommended a within-Guidelines sentence

of 92 months, and it did not at that time address Sandidge’s

request for a concurrent sentence.

Sandidge’s counsel then reiterated his argument for a 46-

month sentence and again requested that it be imposed to

run concurrently with Sandidge’s state sentence. He stated,

“I do, you know, think that 92 months is excessive, and usu-

ally those types of sentences are handed out to criminals

who have engaged in extremely violent conduct. And that’s

just not the case here. 92 months is excessive. At the very

least, I would ask that the court impose a concurrent term.”

No. 14-1492 17

The government responded that it opposed a concurrent

term for the federal offense, given that the two crimes were

unrelated.

The district court then conducted its review of the factors

enumerated in 18 U.S.C. § 3553(a) (“3553(a) factors”). It first

weighed the seriousness of the offense, as measured by the

maximum possible punishment authorized by Congress.

The court then discussed Sandidge’s lengthy criminal histo-

ry, stating that Sandidge had been “in and out of jail over

and over and over again.” It also noted that Sandidge had

“caught a lot of breaks in the justice system,” but had

“squandered them away” by committing more crimes. In

addition, the court considered the recidivist nature of San-

didge’s criminal history, concluding that there was “a com-

mon thread that goes through all these cases.” The judge

noted, “I see drugs. I see guns. I see threats.”

The district court then considered the need for Sandidge’s

sentence to promote respect for the law and to protect socie-

ty. It concluded that Sandidge was “a menace to society right

now,” admonishing him that, “[y]ou’re a menace to society

for the reason you keep breaking the law, that you keep put-

ting people in harm’s way, that you keep getting back in

trouble over and over again.”

Finally, the district court discussed Sandidge’s age and

health conditions. It twice emphasized that, in its view, the

Guidelines range was low as applied to Sandidge. In light of

Sandidge’s age, however, the court was inclined to impose a

lower sentence. The judge stated, “[m]y first tendency when

I went through your file, and I’ve gone through it several

times, was to deviate from the guidelines and go up. You’re

18 No. 14-1492

too old for that, Mr. Sandidge. I don’t want you to die in

prison.”

The district court then imposed its sentence, stating “it is

the judgment of the court that the defendant is hereby com-

mitted to the custody of the Bureau of Prisons to be impris-

oned for a term of 92 months, to be consecutive to the term

that he’s now facing in the state court on … another charge.”

In determining whether to impose a consecutive or con-

current sentence, courts are obligated to consider the 3553(a)

factors. United States v. Nania, 724 F.3d 824, 830 (7th Cir.

2013); 18 U.S.C. § 3584. But courts need not make formal

findings regarding each factor. Nania, 724 F.3d at 838; See also

United States v. Villegas-Miranda, 579 F.3d 798, 801 (7th Cir.

2009). The record must simply assure us that the court

“thoroughly considered the statutory provisions.” Nania, 724

F.3d at 838. We only require express findings to the extent

necessary to fulfill two purposes: “(1) enabling this court to

meaningfully review the district court’s decision; and (2) re-

sponding to the defendant’s principal, nonfrivolous argu-

ments.” Id. at 838 (internal quotations and citations omitted).

On appeal, Sandidge does not challenge the substantive

reasonableness of either the length of his sentence or its con-

secutive imposition. Sandidge argues, however, that the dis-

trict court’s analysis of the 3553(a) factors applied only to the

length of Sandidge’s incarceration. It did not apply, he ar-

gues, to the court’s decision to impose that sentence consecu-

tively to Sandidge’s state term. Sandidge also contends that

the court did not address his arguments for a concurrent

sentence. Therefore, he claims, the district court made no

findings regarding his request for a concurrent sentence, and

thus committed procedural error.

No. 14-1492 19

We review procedural challenges to the application of the

Sentencing Guidelines de novo, and we review substantive

challenges for abuse of discretion. Nania, 724 F.3d at 838. Be-

cause Sandidge does not raise a substantive challenge, our

review here is de novo. 5

The district court provided adequate findings to convince

us that it considered the 3553(a) factors with respect to the

sentence’s consecutive imposition. We have no reason to be-

lieve that the court intended for its analysis to apply only to

the sentence’s length.

As an initial matter, Sandidge’s only argument for a con-

current sentence was based on his contention that a within-

Guidelines sentence would be excessive as applied to him. 6

As a result, Sandidge argued, his sentence should, “at the

very least,” be imposed to run concurrently to his undis-

charged state term. His argument for a concurrent sentence

was therefore dependent on the length of sentence that the

court found to be reasonable and appropriate.

The district court explicitly stated that the Guidelines

range was reasonable in Sandidge’s case. In fact, the court

repeatedly stated that it contemplated imposing a sentence

above the Guidelines range, due to Sandidge’s recidivist be-

havior. Having found that the Guidelines range was appro-

priate, and not excessive, the district court necessarily reject-

5 The government asks us to apply the abuse-of-discretion standard of

review, but because Sandidge does not raise a substantive challenge, the

de novo standard is appropriate.

6 Because Sandidge’s 92-month sentence represented the low end of the

Guidelines range, Sandidge necessarily argued that anything short of a

below-Guidelines sentence would be excessive as applied to him.

20 No. 14-1492

ed Sandidge’s argument that “at the very least” his federal

sentence should run consecutively to his state term. Because

the court found that the Guidelines range was reasonable as

applied to Sandidge, it had no need to seek “mitigation” of

that sentence by imposing it to run concurrently with the

unrelated state term.

In addition, despite the court’s concerns with Sandidge’s

recidivist behavior, and its consideration of an above-

Guidelines sentence, it imposed a sentence at the low end of

the Guidelines range. That reinforces our conclusion that the

district court considered (and rejected) Sandidge’s argument

that a concurrent sentence was necessary to mitigate an oth-

erwise “excessive” within-Guidelines sentence.

The context of the district court’s 3553(a) analysis also

confirms that the court intended its analysis to apply both to

the length of sentence and to its consecutive imposition. Be-

fore reviewing the 3553(a) factors, the court heard argument

from both Sandidge and the government regarding the im-

position of a concurrent or consecutive sentence. So we have

no doubt that the court was aware of its discretion to impose

a concurrent sentence. And immediately following its review

of the 3553(a) factors, the court imposed sentence. It did so

by imposing the 92-month term and its consecutive run in

the same sentence. That timing, combined with the court’s re-

jection of Sandidge’s below-Guidelines sentence request,

convinces us that the court’s 3553(a) analysis applied equally

to the imposition of a consecutive sentence and to the sen-

tence’s length.

Admittedly, the district court here did not expressly state

that it considered Sandidge’s request for a concurrent sen-

tence. Although we find no error in that omission, we en-

No. 14-1492 21

courage district courts to include such express statements in

the future. It is also a best practice for the court to specifical-

ly reference the Guidelines provision that it relies upon in

imposing sentence. But in this case, even without such ex-

plicit statements, the highly experienced district judge’s

analysis satisfied both of the requirements described in Na-

nia: it provided adequate findings to permit meaningful re-

view on appeal, and it responded to Sandidge’s principal ar-

guments. Therefore, we find that the district court did not

commit procedural error in imposing a consecutive sentence.

D. Supervised Release Conditions

Lastly, we turn to Sandidge’s conditions of supervised re-

lease. Probation recommended the imposition of both stand-

ard and special conditions of supervised release, and it

enumerated those recommended conditions in its PSR. The

district court imposed on Sandidge a 2-year period of super-

vised release, and it imposed supervised release conditions

that reflected those listed in the PSR. In addition to several

mandatory supervised release conditions, the court stated

that Sandidge “shall comply with the 15 standard conditions

that have been adopted by this Court.” It also imposed a

number of “special” conditions.

We note that the system of supervised release followed

the elimination of parole in the federal system. In our recent

cases, we have called attention to several issues that have

proven problematic in the administration of supervised re-

lease. See United States v. Parrish Kappes, Nos. 14–1223, 14–

2135, 14–2482, 2015 WL 1546810 (7th Cir. Apr. 8, 2015); United

States v. Thompson, 777 F.3d 368 (7th Cir. 2015); United States

v. Siegel, 753 F.3d 705 (7th Cir. 2014). One issue concerns the

procedural requirements for imposing supervised release

22 No. 14-1492

conditions. It has been the typical practice within this circuit

for courts to impose conditions of supervised release with

little or no explanation of the propriety of those conditions

as applied to individual defendants. Our recent cases have

made clear, however, that a sentencing judge is required “to

evaluate the propriety of any conditions of supervised re-

lease that the judge is thinking of imposing.” Thompson, 777

F.3d at 373. And he must do so by applying the sentencing

factors listed in 18 U.S.C. § 3553(a) to the conditions under

consideration. Id.; see also United States v. Booker, 543 U.S. 220

(2005); 18 U.S.C. § 3583(c).

The second issue we have addressed in recent cases in-

volves the breadth and specificity of the supervised release

conditions imposed. We have long counseled district courts

to adopt precise supervised release conditions. For example,

in United States v. Scott, we cautioned a sentencing court that

it should

do what is possible to adopt precise rules. Terms

should be established by judges ex ante, not proba-

tion officers acting under broad delegations and sub-

ject to loose judicial review ex post (when the prose-

cutor proposes to reimprison a person for failure to

comply with the probation officer’s directions).

Courts should do what they can to eliminate open-

ended delegations.

316 F.3d 733, 736 (7th Cir. 2003). But as we have de-

scribed in our recent cases, such open-ended delegations

have been commonplace: they have taken the form of

supervised release conditions that are so broad in scope

and so vague in language that they fail to adequately

describe to the defendant what conduct is prohibited.

No. 14-1492 23

See Thompson, 777 F.3d at 375, 376-80; Siegel, 753 F.3d at

712-16.

Both of these issues are raised by the conditions of su-

pervised release imposed here. We review Sandidge’s stand-

ard and special conditions in turn.

1. The Standard Conditions

The district court imposed fifteen of Sandidge’s super-

vised release conditions in one phrase by stating that San-

didge “shall comply with the 15 standard conditions that

have been adopted by this Court.” The court offered no ex-

planation as to the propriety of those conditions, and it con-

ducted no review of the applicable 3553(a) factors. As we

held in Thompson, this approach to the imposition of super-

vised release requires a remand, so we must vacate these

conditions.

As we have previously described, such sentencing prac-

tices have become the norm. In fact, the district court in this

case was operating under a General Order that had been in

effect since November of 1999. N.D. Ind. Gen. Ord. 1999-8.

That order stated that the district “now adopts the attached

fifteen (15) standard conditions for both probation and su-

pervised release.” Id. The order also provided district courts

with the prefatory language to use when imposing those

conditions. Id. (“The specific language to be used is as fol-

lows: While on [supervised release], the defendant shall …

comply with the fifteen (15) standard conditions that have

been adopted by this court.”). The district court used pre-

cisely that language here.

We note, however, that the Northern District of Indiana

repealed this General Order (after Sandidge’s sentencing) in

24 No. 14-1492

September of 2014, before our decision in Thompson. N.D.

Ind. Gen. Ord. 2014-8. In its rescission, the court issued the

following order:

By consensus of the judges, in view of the judges’ on-

going consideration of the appropriateness of stand-

ard conditions of supervision generally, and the

awareness that the imposition of any condition of su-

pervision must be based on an individualized deter-

mination of what is appropriate and necessary for a

given defendant and his circumstances, the Court

hereby RESCINDS General Order 1999-8, which

adopted 15 standard conditions for probation and su-

pervised release.

Id. We commend the Northern District of Indiana for this

proactive approach to its supervised release procedures.

Of course, this change occurred after Sandidge’s sen-

tencing, and thus the district judge did not enjoy the ben-

efit of the change. But we have no doubt that it will en-

courage the careful consideration of individual super-

vised release conditions going forward.

Should these “standard” conditions be reconsidered

on remand, we note that we have previously found that

several of those imposed on Sandidge suffer from fatal

degrees of vagueness. See Thompson, 777 F.3d at 375, 376-

80. These include, paraphrased, the requirements that

Sandidge:

 Support his dependents and meet other family re-

sponsibilities;

 Notify the probation officer at least ten days prior

to any change of employment;

No. 14-1492 25

 Not associate with any persons engaged in crimi-

nal activity, and not associate with any person

convicted of a felony unless given permission to

do so by the probation officer; and

 Not frequent places where controlled substances

are illegally sold, used, distributed, or adminis-

tered.

Without further explanation by the court, these condi-

tions are too vague to provide adequate notice to the de-

fendant as to what conduct is prohibited. Under Thomp-

son, should any of these conditions be reimposed, they

must be further defined in order to provide Sandidge

with proper notice as to what conduct is prohibited.

Likewise, we have previously found that several of

the conditions imposed on Sandidge are too broad to

meet the statutory requirement that they “involve[ ] no

greater deprivation of liberty than is reasonably neces-

sary for the purposes set forth” in the applicable § 3553(a)

provisions. See 18 U.S.C. § 3583(d)(2); see also Thompson,

777 F.3d at 375, 376-80. These include, again paraphrased,

the conditions that Sandidge:

 Answer truthfully all inquiries by the probation

officer; and

 Permit the probation officer to visit him at any

time at home.

Should these conditions be reimposed, the district court

should provide further explanation as to why such condi-

tions are needed. This is necessary to ensure that they

prohibit no further conduct than is necessary to fulfill the

statutory purposes of 18 U.S.C. § 3553(a).

26 No. 14-1492

2. The Special Conditions

The court also imposed several “special” conditions of

supervised release. As with the standard conditions, the

court provided no explanation as to why those condi-

tions were appropriate. For the reasons articulated above,

these conditions must also be remanded for redetermina-

tion.

In addition to the absence of explanation, at least one

of the conditions also suffers from a fatal degree of

vagueness, and potentially overbreadth: the court in-

structed Sandidge that he “shall not consume … any

mood-altering substances.” As we held in Siegel, a prohi-

bition of mood-altering substances could, by its terms,

proscribe everything from chocolate to blueberries, sub-

stances “that are not causal factors of recidivist behav-

ior.” 753 F.3d at 713-15. On remand, the court will have

the opportunity to reexamine the scope of that condition,

should it be reimposed, as well as the others.

We conclude by noting one issue that is not directly

presented for our review today, but will undoubtedly be

at issue in future cases. In its PSR, Probation suggested

all of the conditions of supervised release that were ulti-

mately imposed at sentencing. Sandidge, therefore, had

prior notice of the substance of his conditions. At his sen-

tencing hearing, however, Sandidge did not raise any

substantive objections to those conditions. And he did

not raise an objection to the procedural error he asserts

on appeal—the district court’s failure to consider any of

the 3553(a) factors.

No. 14-1492 27

Ordinarily, a defendant’s negligent failure to object to

an alleged error at sentencing results in the forfeiture of

that claim of error. United States v. Martin, 692 F.3d 760,

766 (7th Cir. 2012). While the defendant is not barred

from raising that claim on appeal, under our forfeiture

doctrine, the defendant’s claim would be subject to plain

error review. Id. (A properly preserved substantive chal-

lenge would be subject to abuse-of-discretion review, and

a properly preserved procedural challenge would be sub-

ject to de novo review. Kappes, 2015 WL 1546810 at *20.)

But as we recently observed, there is some degree of

tension in our prior cases regarding the standard of re-

view that we apply to challenges of supervised release

conditions. Kappes, 2015 WL 1546810 at *19. Much of the

tension centers on two issues, and the interplay between

them: (1) whether a defendant had prior notice of an im-

posed supervised release condition; and (2) what objec-

tions (or exceptions) a defendant must raise to an im-

posed supervised release condition, or the procedures

surrounding its imposition, to avoid forfeiture. See

Kappes, 2015 WL 1546810 at *17-21; see also, United States v.

Johnson, 542 Fed. Appx. 516, 518-19, (highlighting tension

in cases regarding objections and exceptions under Rule

51); Fed. R. Cr. P. 51.

Because the government concedes that Sandidge’s su-

pervised release conditions require remand, we are not

called upon today to weigh in on the standard of review.

We simply flag this issue, as we did in Kappes, as one that

is likely to arise in subsequent cases.

In sum, the conditions of supervised release must be

imposed to fit the particular circumstances of the defend-

28 No. 14-1492

ant being sentenced. In addition, they must be defined

adequately enough to put defendants on notice as to

what behavior is proscribed, and they must involve no

greater deprivation of liberty than is reasonably neces-

sary.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district

court’s imposition of the 4-level “in connection with an-

other felony” enhancement and its denial of the 3-level

acceptance-of-responsibility reduction. We AFFIRM the

district court’s imposition of a consecutive sentence. And

we VACATE the conditions of supervised release and

REMAND that portion of Sandidge’s sentence for resen-

tencing consistent with this opinion.