United States v. Booker Sewell ( 2015 )

In 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.