United States v. Kenneth Sandidge , 784 F.3d 1055 ( 2015 )

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.