United States v. Jason Guidry

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1345
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JASON B. GUIDRY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 13-CR-16 — Rudolph T. Randa, Judge.
____________________
ARGUED FEBRUARY 17, 2016 — DECIDED MARCH 22, 2016
____________________
Before BAUER, FLAUM, and WILLIAMS, Circuit Judges.
FLAUM, Circuit Judge. Jason Guidry was sentenced to
twenty-five years in prison after he pled guilty to pos-
sessing and distributing illegal drugs and prostituting
women. On appeal, he challenges the district court’s de-
nial of his motions to suppress evidence found during
searches of his car and his two residences; the imposition
of two sentence enhancements; and the imposition of
vague, ambiguous, and conflicting conditions of super-
2 No. 15-1345
vised release. For the reasons that follow, we vacate and
remand the disputed conditions of supervised release,
and affirm Guidry’s conviction, prison term, and all other
supervised release terms.
I. Background
A. Traffic Stop
On August 21, 2012, City of Sheboygan police officer
Dustin Fickett stopped a car driving without license
plates. When Fickett approached the car, he recognized
Guidry, the driver. Fickett had pulled Guidry over a few
months earlier and smelled a strong odor of marijuana,
but after searching the car, Fickett did not find any illegal
drugs. In the months that followed, Fickett learned that
the Sheboygan Detective Bureau suspected that Guidry
was using and dealing drugs.
During this stop, Fickett detected only a faint odor of
marijuana, and because it was windy, Fickett was not
sure that the odor was emanating from inside Guidry’s
car. As a result, Fickett did not believe that he had prob-
able cause to search the car.
Fickett asked Guidry for his vehicle paperwork and
identification and Guidry complied. Fickett returned to
his car and immediately called officer Trisha Saeger, who
handled a drug-detection canine, and asked her to come
to the scene. While he waited for Saeger to arrive, Fickett
processed Guidry’s paperwork and called for a backup
officer.
Saeger arrived about five minutes after Fickett’s call,
and officer Anthony Hamilton arrived about three
No. 15-1345 3
minutes after that. When Saeger arrived, Fickett was still
preparing Guidry’s citation.
After checking in with Fickett and Saeger, Hamilton
approached Guidry’s vehicle. Hamilton asked Guidry to
exit the vehicle in preparation for a dog sniff, in accord-
ance with standard department procedure. Guidry be-
came argumentative, stated that he did not consent to a
dog sniff, and remained in the car, fumbling with paper-
work. Hamilton asked Guidry to show his hands and
again requested that he step out of the car. This time,
Guidry complied. Guidry did not close the door. Mo-
ments later, Saeger began the dog sniff.
Saeger has been working with Bud, her canine, since
March 2009. Bud is trained to detect odors of marijuana,
cocaine, heroin, and methamphetamine. Bud alerts to an
odor change by changing his behavior. He is also trained
to “indicate,” usually by sitting, to an odor of drugs. As
soon as Bud passed the driver’s open door, Bud alerted.
Soon after, Bud indicated an odor of drugs by sitting
down in front of the door. Then Bud got up, approached
the car, and, according to Guidry, put his head into the
car through the open door.
Fickett told Guidry that Bud had indicated at the
driver’s door and Guidry admitted that he had smoked
marijuana at home and still had a “half blunt” in the car.
Saeger then searched the car and found the blunt, as well
as a 7 UP “safe can” containing clear plastic baggies of
heroin and cocaine. Fickett arrested Guidry.
4 No. 15-1345
B. Searches of Guidry’s Residences
On August 22, 2012, the day after Guidry’s arrest,
Fickett and Detective Brian Bastil gave sworn testimony
to a circuit court commissioner in support of a search
warrant for Guidry’s residence at 1725 North 12th Street
(the “12th Street residence”). Fickett described the results
of the search of Guidry’s car: 15 grams of heroin, indi-
vidually bagged; 4.1 grams of powder cocaine, individu-
ally bagged; and 3.9 grams of crack cocaine, individually
bagged. Bastil testified that the car contained a distribu-
tion quantity of drugs worth thousands of dollars.
Bastil also provided information obtained from two
confidential informants as part of an ongoing investiga-
tion of the 12th Street residence. The first informant, “CI-
1,” told Bastil that Guidry was prostituting women and
selling large amounts of heroin, powder cocaine, crack
cocaine, marijuana, and ecstasy from the 12th Street resi-
dence. CI-1 admitted to purchasing heroin from Guidry
two months earlier. A second confidential informant,
“CI-2,” also disclosed that Guidry was selling heroin and
other drugs from the 12th Street residence, and admitted
to purchasing heroin from Guidry at the residence within
the past two weeks. Bastil testified that Guidry identified
1725 North 12th Street as Guidry’s residence on the night
of Guidry’s arrest, and that Guidry had admitted to
smoking marijuana at his residence immediately before
the traffic stop.
The court commissioner authorized the warrant and
Bastil immediately led a search of the 12th Street resi-
dence. That search uncovered heroin, powder cocaine, a
substantial amount of crack cocaine, a mason jar full of
No. 15-1345 5
marijuana, and another safe can. A woman present at the
residence during the search told Bastil that Guidry main-
tained another residence on Pine Street in which the ex-
change of sex and drugs took place. She said that Guidry
prostituted women there, that he took about ninety per-
cent of the money, and that he “feeds [the women] with
heroin.”
A few hours later, Bastil again appeared before a
court commissioner seeking a warrant to search Guidry’s
Pine Street residence. He described the drugs that were
found at the 12th Street residence, as well as the infor-
mation he learned from the woman who was present
during the search. Bastil also testified that named indi-
vidual Chelsee W. and another known female had visited
Guidry’s Pine Street residence within the previous three
weeks and had received heroin from Guidry in exchange
for sex acts. Chelsee had told Bastil that the second fe-
male had overdosed at the residence after receiving her
heroin, a fact that Bastil independently confirmed. The
court commissioner authorized the search warrant.
C. Motions to Suppress
On June 10, 2013, Guidry filed a motion to suppress
evidence found in his car during the traffic stop. He ar-
gued that because the driver’s door was open, the police
had improperly expanded the dog sniff to the interior of
his car. A magistrate judge filed a report on July 1, 2013
recommending that the district court deny Guidry’s mo-
tion because the officers’ decision to leave the door open
was insufficient to show a desire to facilitate the dog
sniff. The magistrate judge also determined that the offic-
ers were acting under a reasonable suspicion that the ve-
6 No. 15-1345
hicle contained narcotics because Fickett detected a faint
odor of marijuana during the traffic stop, Fickett had
previously pulled Guidry over and detected a strong
odor of marijuana, and Fickett had since received infor-
mation that Guidry was using and dealing drugs. Guidry
objected to the report and recommendation, but the dis-
trict court adopted it on August 16, 2013.
On November 22, 2013, Guidry filed a supplemental
brief in support of his motion to suppress, arguing that
the searches of his two residences were unlawful because
the information used to obtain search warrants was ac-
quired through the illegal search of his car. He contended
that the traffic stop was impermissibly delayed and
broadened by Fickett’s decision to bring a drug detection
dog to the scene. The magistrate judge again recom-
mended that the district court deny Guidry’s motion,
reasoning that the dog sniff did not delay the stop in any
appreciable way because the canine officer arrived short-
ly after the stop was initiated. The district court adopted
the magistrate judge’s report, over Guidry’s objection, on
January 24, 2014.
On February 28, 2014, Guidry filed a motion to sup-
press the evidence discovered at his residences, again
contesting the search warrants. He argued that the affi-
davits attached to the search warrants did not contain
sufficient reliable information to establish probable
cause. The magistrate judge filed a report on March 24,
2014 rejecting Guidry’s claims and the district court
adopted the report, over Guidry’s objection, on July 10,
2014.
No. 15-1345 7
D. Plea Agreement
Guidry entered into a plea agreement with the gov-
ernment on October 10, 2014. Guidry agreed to plead
guilty to Counts 6, 7, 10, and 14: three counts of interstate
travel for the purposes of prostitution in violation of 18
U.S.C. § 2421, and one count of possession with intent to
distribute heroin, crack, and cocaine in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C). Guidry preserved his
right to appeal the decisions denying his motions to sup-
press.
The plea agreement contained an attachment with
sworn testimony from three witnesses—A.R., M.M., and
A.M.—supporting the three interstate travel counts. A.R.
prostituted for Guidry from February to April of 2012. In
her affidavit, A.R. explained that she believed Guidry
loved her and that she was his girlfriend. To elicit her
participation in his escort business, Guidry told her that
men would pay thousands of dollars to spend time with
“nice females like her.” He posted an ad for her online
and drove her to a hotel in Rockford where she “did
dates.” She explained that she was afraid of Guidry:
“[H]e’s a big guy … and anything could happen—I was
afraid that it would get physical.”
M.M. stated in her affidavit that she met Guidry in
April 2012 through her boyfriend who purchased heroin
from him. M.M. had been addicted to heroin but had
been clean for six months before meeting Guidry. She
was a stripper and Guidry said that she could make more
money prostituting for him. Guidry took her to Rockford
to prostitute and gave her heroin in return. Guidry knew
M.M. was addicted to heroin and would go through
8 No. 15-1345
withdrawal if she did not get heroin every twenty-four
hours. She explained, “[Guidry] scared me. I always
wanted to please him … and I did not want to go
through withdrawal.”
A.M. also met Guidry in April 2012 when she and a
friend started going to Guidry’s house to buy heroin and
crack. Guidry asked A.M. to prostitute for him and said it
would be easy money. When A.M. told him she did not
want to go to Rockford to prostitute, he threatened to cut
off her heroin supply, so A.M. went to Rockford. She ex-
plained that she was afraid of Guidry because he had
brutally beaten his ex-girlfriend, who was one of her
friends, and because he was “very big” and “always yell-
ing at us.”
E. Presentence Report and Sentencing
The probation office prepared a presentence investi-
gation report (“PSR”) on December 23, 2014. The PSR
recommended several sentencing enhancements, includ-
ing a cross reference from U.S.S.G. § 2G1.1(a) to §
2A3.1(a)(2) because Guidry caused his victims to engage
in sexual acts by placing them in fear, and a two-level
“vulnerable victim” enhancement under § 3A1.1(b)(1). 1
Guidry’s final guidelines range was 210 to 262 months.
At Guidry’s sentencing hearing, the government of-
fered the testimony of Dr. Selahattin Kurter, a doctor cer-
tified in psychiatry and addiction medicine. He testified
about heroin’s addictive properties and explained that
1 For all three interstate travel counts, the PSR also applied a four-
level enhancement under § 2G1.1(b)(1) because Guidry used fraud or
coercion in committing the offenses.
No. 15-1345 9
addicts have a powerful fear of withdrawal that causes
them to “look for the drug at all costs.”
Detective Tamara Remington, the case agent for the
trafficking portion of the investigation, testified about her
contact with the witnesses. She explained that A.R. “has
been very frightened since hearing [Guidry’s] name
again…. I believe she’s gone into hiding. She’s very
scared.” Remington explained that Guidry has a control-
ling and angry side that he used to keep A.R. prostituting
for him. For example, A.R. had a violent confrontation
with Guidry in 2012 when she tried to leave him. A.R.
called a cab and as she entered, Guidry forcibly pulled
her out. The cab driver was so concerned by Guidry’s
behavior that he intervened by holding on to A.R. and
calling 911. A few days later, when A.R. returned to She-
boygan after staying with her parents, her apartment had
been ransacked. Allegedly, Guidry told her that he was
responsible and that A.R. was going to leave this world
just as she entered it—with nothing. Remington also in-
terviewed the cab driver that intervened to help A.R.,
and he confirmed A.R.’s account and explained that he
recalled the incident well because Guidry was threaten-
ing both A.R., who he described as “petite,” and him.
Before sentencing Guidry, the district court explained
that after thoroughly considering the record, the court
believed that the circumstances warranted an above-
guidelines sentence. The court sentenced Guidry to 299
months, or nearly twenty-five years, in prison. The dis-
trict court also imposed three-year terms of supervised
release for each of the four counts, all running concur-
rently. This appeal followed.
10 No. 15-1345
II. Discussion
On appeal, Guidry challenges the district court’s de-
nial of his motions to suppress evidence found during
the searches of his car and his two residences; the imposi-
tion of two sentence enhancements; and the imposition of
vague, ambiguous, and conflicting conditions of super-
vised release. We address each of these arguments in
turn.
A. Search of Guidry’s Car
Guidry contends that the district court erred by deny-
ing his first motion to suppress because the evidence dis-
covered during the traffic stop was the product of an il-
legal dog sniff. Guidry does not dispute that the traffic
stop was lawful and supported by probable cause. He in-
stead argues that the officers improperly prolonged the
duration of the traffic stop and violated his Fourth
Amendment rights by allowing the dog to search the in-
terior of his car. When reviewing a district court’s deci-
sion on a motion to suppress, we review findings of fact
for clear error and conclusions of law de novo. United
States v. Uribe, 709 F.3d 646, 649 (7th Cir. 2013).
i. Duration of the Traffic Stop
In arguing that the officers impermissibly delayed the
traffic stop to conduct a dog sniff, Guidry relies on Rodri-
guez v. United States, in which the U.S. Supreme Court
held that police cannot prolong a traffic stop in order to
conduct a dog sniff without reasonable suspicion that the
vehicle contains illegal drugs. 135 S. Ct. 1609, 1615–16
(2015).
No. 15-1345 11
Under Rodriguez, Guidry’s claim fails for two reasons:
first, the dog sniff did not prolong the traffic stop, and
second, even if it had, the officers had reasonable suspi-
cion to believe that Guidry’s car contained illegal drugs.
First, unlike the search in Rodriguez, the dog sniff did not
prolong the traffic stop in any meaningful way: Saeger
arrived on the scene five minutes after Fickett called her,
and at that time, Fickett was still preparing Guidry’s traf-
fic citation. As the magistrate judge observed, “most im-
portant here, at the time when Bud ‘indicated’ that drugs
were present in the vehicle, thereby providing a new jus-
tification to extend the traffic stop, Officer Fickett had yet
to complete his initial mission—that is, issuing Guidry a
traffic citation.”
Even if there was evidence that the officers had im-
properly delayed issuing Guidry’s citation, this case sat-
isfies Rodriguez for a second reason. In Rodriguez, the Su-
preme Court noted that reasonable suspicion of criminal
activity would justify the police in detaining the driver
beyond completion of the traffic infraction. Id. at 1616.
Here, when Fickett pulled Guidry over, he had reasona-
ble suspicion to believe that Guidry had drugs in his car.
Fickett not only smelled a faint odor of marijuana, but he
also recalled that he had previously stopped Guidry and
smelled marijuana. Moreover, Fickett was aware that his
detective bureau had evidence that Guidry was a drug
user and dealer. Thus, Fickett “had reasonable suspicion
of criminal activity at that point and so was justified in
prolonging the stop for a reasonable time to confirm or
dispel, with the dog’s assistance, his mounting suspi-
cions.” United States v. Sanford, 806 F.3d 954, 959 (7th Cir.
2015) (holding that reasonable suspicion justified the of-
12 No. 15-1345
ficer in prolonging the stop by eight minutes to wait for
the arrival of the drug dog).
ii. Dog Sniff of the Interior of Guidry’s Car
In arguing that the police officers violated his consti-
tutional rights by allowing Bud to intrude into the interi-
or of his car, Guidry relies on United States v. Winning-
ham, in which the Tenth Circuit held that a dog sniff vio-
lated the Fourth Amendment. 140 F.3d 1328 (10th Cir.
1998). In that case, police officers stopped a van on the
reasonable suspicion that it contained illegal aliens. De-
spite the fact that the van was empty, the agents called in
a dog. The handler observed a “just noticeable differ-
ence” in the dog’s conduct as it reached the rear of the
van and unleashed the dog. Id. at 1329. When the dog
reached one of the van doors that the officers had left
open, it leaped into the van and methodically sniffed the
interior. Eventually, the dog alerted at a rear vent that
contained fifty kilograms of marijuana.
The Tenth Circuit determined that the officers’ con-
duct, which included opening the door, allowing the van
to sit for several minutes with the door open, unleashing
the dog as it neared the open door, and allowing the dog
to remain in the van, suggested a desire to facilitate a dog
sniff of the van’s interior. Id. at 1331. And because the po-
lice did not have reasonable suspicion for a search of the
interior after their visual inspection revealed nothing
suspicious, the Tenth Circuit held that the search violated
the Fourth Amendment. Id.This case is distinguishable from Winningham. Here,
there is no indication that the officers intended to facili-
No. 15-1345 13
tate the dog’s entry into the car. Unlike the officers in
Winningham, Saeger kept Bud on his leash and did not al-
low him to jump into the car. Moreover, the officers did
not open the door—it was Guidry who left it open. Im-
mediately after Guidry exited, Saeger led Bud through
her usual circuit, and despite her efforts to keep Bud out-
side of the car, his head allegedly entered it. In sum, the
facts of this case are very different from those in Win-
ningham and more closely resemble cases where no
Fourth Amendment violation was found. See United
States v. Pierce, 622 F.3d 209, 214–15 (3d Cir. 2010) (con-
cluding that no Fourth Amendment violation occurred
when a dog jumped instinctively though an open car
door “without facilitation by its handler”); United States
v. Lyons, 486 F.3d 367, 373–74 (8th Cir. 2007) (finding no
Fourth Amendment violation when a dog stuck his head
instinctively though a van’s open window without being
directed to do so by officers); United States v. Stone, 866
F.2d 359, 363–64 (10th Cir. 1989) (finding no Fourth
Amendment violation when a dog jumped instinctively
into defendant’s open hatchback and when officers did
not ask the defendant to open the hatchback for purposes
of the dog sniff).
As important, at the point that Bud’s head supposed-
ly entered Guidry’s car, the officers had probable cause
to search the interior because Bud indicated that the car
contained drugs while sniffing the car’s perimeter. By
contrast, at the time that the dog entered the van in Win-
ningham, the officers had no reason to suspect that evi-
dence of criminal activity would be found. 140 F.3d at
1331.
14 No. 15-1345
Because the dog sniff search of Guidry’s car was law-
ful, the district court correctly denied Guidry’s motion to
suppress.
B. Searches of Guidry’s Residences
Guidry next attacks the legality of the search warrants
for his two residences on the grounds that the officers did
not have probable cause. “Probable cause is established
when, considering the totality of the circumstances, there
is sufficient evidence to cause a reasonably prudent per-
son to believe that a search will uncover evidence of a
crime.” United States v. Harris, 464 F.3d 733, 738 (7th Cir.
2006) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)).
When a search is authorized by a warrant, deference is
owed to the issuing judge’s conclusion that there is prob-
able cause if there is “substantial evidence in the record”
that supports his decision. United States v. Sims, 551 F.3d
640, 644 (7th Cir. 2008) (citation and internal quotation
marks omitted). We have also explained:
Where probable cause is based on information
supplied by an informant, we employ a totali-
ty-of-the-circumstances inquiry encompassing
several factors: first, the degree to which the in-
formant acquired knowledge of the events
through firsthand observation; second, the de-
tail and specificity of the information provided
by the informant; third, the interval between
the date of the events and a police officer’s ap-
plication for the search warrant; and fourth,
the extent to which law enforcement corrobo-
rated the informant’s statements. No one factor
is determinative and a deficiency in one factor
No. 15-1345 15
may be compensated for by a strong showing
in another or by some other indication of relia-
bility.
United States v. Searcy, 664 F.3d 1119, 1122 (7th Cir. 2011)
(citations and internal quotation marks omitted).
Guidry first contends that Bastil did not have proba-
ble cause to search his 12th Street residence because Bas-
til failed to corroborate statements made by the confiden-
tial informants, the informants did not testify in front of
the court commissioner, and some of the informants’ in-
formation was old. These arguments assume that the
court commissioner relied only on the information pro-
vided by the confidential informants when issuing the
warrant. However, in addition to that information, the
court commissioner considered that officers had found
distribution quantities of drugs in Guidry’s car and that
Guidry admitted to using drugs at his home. That evi-
dence alone provided probable cause to believe that a
search of Guidry’s home would turn up further evidence
of criminal activity.
Guidry’s arguments about the reliability of the in-
formants’ information also fail. Although neither inform-
ant satisfied all four of the Searcy factors, there were
many indications that the information they provided was
reliable: the informants were known to police, they ac-
quired their information through first-hand observation,
their accounts were detailed, and CI-2 purchased drugs
from Guidry less than two weeks before his arrest. Alt-
hough CI-1’s information was somewhat stale, CI-2’s up-
to-date account corroborated it and gave officers cause to
believe that criminal activity was continuing at that resi-
16 No. 15-1345
dence. Further, the seizure of distribution quantities of
drugs from Guidry’s car corroborated the statements
made by both informants. Therefore, the court commis-
sioner correctly determined that there was probable
cause to search Guidry’s 12th Street residence.
Guidry next argues that the police did not have prob-
able cause to search his residence on Pine Street because
there was no indication that the informant present during
the search of the 12th Street residence was reliable. But
that informant also passed the Searcy test—her statement
was detailed, based on recent information, and corrobo-
rated by other witnesses and the large amounts of drugs
recovered from Guidry’s home and car. As such, the
court commissioner properly determined that the police
had probable cause to search Guidry’s Pine Street resi-
dence.
Because both warrants were legal, the district court
did not err in denying Guidry’s motion to suppress the
evidence found during the searches of his residences.
C. Sentence Enhancements
Guidry disputes the district court’s application of cer-
tain sentence enhancements. We review the district
court’s application of the sentencing guidelines de novo
and its factual findings for clear error. United States v.
Bennett, 461 F.3d 910, 912 (7th Cir. 2006).
i. Cross Reference to U.S.S.G. § 2A3.1(a)(2)
The applicable sentencing guideline for an interstate
travel offense is § 2G1.1, but the district court applied the
cross reference to § 2A3.1(a)(2), the criminal sexual abuse
statute, because it determined that Guidry’s offenses in-
No. 15-1345 17
volved conduct described in 18 U.S.C. § 2242—“caus[ing]
another person to engage in a sexual act by threatening
or placing that other person in fear ….” Guidry acknowl-
edges that the victims testified that they were afraid for
their safety, but argues that this evidence is inadequate to
permit the cross reference.
We disagree. “In the § 2242 context we define the con-
cept of ‘fear’ broadly ….” United States v. Henzel, 668 F.3d
972, 977 (7th Cir. 2012). In Henzel, we observed that the
district court had underestimated the sentencing range
by not applying the cross reference to § 2A3.1 when the
evidence clearly showed that the victim, a twelve-year-
old girl, was manipulated into having sex with the adult
defendant, whom she feared. Id. We noted that the child
testified and the defendant admitted that the child was
afraid of the defendant, and that the defendant had
“mental and emotional power” over her. Id. We also ex-
plained that the evidence suggested “that the girl feared
… [that the defendant] would react badly if she did not
meet his demands.” Id.
As in Henzel, the evidence shows that Guidry exer-
cised mental and emotional power over his victims, in
addition to physical violence, in order to induce them to
work as escorts. Each of the three victims testified that
they were afraid of Guidry and what would happen to
them if they did not do what he said. Moreover, each vic-
tim was addicted to heroin and Guidry controlled their
supply based on their willingness to engage in sexual
18 No. 15-1345
acts. As such, the district court correctly applied the cross
reference to § 2A3.1 when sentencing Guidry. 2
ii. “Vulnerable Victim” Enhancement
The district court also applied a sentence enhance-
ment under U.S.S.G. § 3A1.1(b)(1), which allows courts to
increase a sentence by two levels “if the defendant knew
or should have known that a victim of the offense was a
vulnerable victim.” The guideline application notes ex-
plain that “vulnerable victim” means a person “who is a
victim of the offense of conviction and … who is unusu-
ally vulnerable due to age, physical or mental condition,
or who is otherwise particularly susceptible to the crimi-
nal conduct.” U.S.S.G. § 3A1.1 cmt. n.2.
The district court determined that the enhancement
was appropriate due to Guidry’s knowledge and exploi-
tation of M.M.’s heroin addiction. Guidry opposes the
2 Guidry also contends that the district court did not comply with
Federal Rule of Criminal Procedure 32(i)(3)(B), which directs district
courts to rule on disputed matters in the PSR before sentencing defend-
ants, when it applied the cross reference. Guidry admits that this rule
imposes only a “minimal burden” on the sentencing judge to make find-
ings on record when resolving a dispute between the parties. United
States v. Heckel, 570 F.3d 791, 796 (7th Cir. 2009). Here, the district court
did make the necessary factual findings before sentencing Guidry. Alt-
hough the district court did not separate the analysis for the cross refer-
ence and the § 2G1.1(b)(1) “fraud and coercion” enhancement, the dis-
trict court noted Guidry’s intimidating presence, his emotional and
physical manipulation of the victims, and the victims’ reasonable fear of
him. Those factual findings supported the imposition of the cross refer-
ence and satisfied the minimal burden set forth under Rule 32(i)(3)(B).
No. 15-1345 19
enhancement, arguing that a victim’s status as a drug
addict is insufficient to warrant the enhancement, and
that there was no evidence that M.M. was otherwise vul-
nerable.
Our sister circuits have held that drug addiction is not
enough, standing alone, to serve as the basis for this en-
hancement. See, e.g., United States v. Volkman, 736 F.3d
1013, 1030 (6th Cir. 2013) (holding that if the victims’
drug addiction was the “sole basis for the district court’s
decision to apply the enhancement, then reversal would
be warranted”), vacated on other grounds, Volkman v. Unit-
ed States, 135 S. Ct. 13 (2014); United States v. Pavao, 948
F.2d 74, 78 (1st Cir. 1991) (“[W]e should hesitate to say
that anyone involved with drugs becomes ipso facto a
‘vulnerable victim’ of a crime ….”). But federal courts
have affirmed the vulnerable victim enhancement in cas-
es involving drug addicts where the sentencing court
“considered [the victim] as an individual, and … did not
rest its ultimate determination simply upon the fact that
[the victim] belonged to a class of … drug users.” Pavao,
948 F.2d at 78; see also United States v. Amedeo, 370 F.3d
1305, 1317 n.10 (11th Cir. 2004) (affirming the sentence
enhancement based on the victim’s drug addiction and
explaining, “[w]e do not suggest that every drug addict
is a vulnerable victim within the meaning of § 3A1.1.
Applying this enhancement is highly fact-specific and
must take into account the totality of the circumstances”
(internal citation omitted)).
In applying the sentence enhancement, the district
court observed that Guidry used his knowledge that
M.M. was addicted to heroin and suffered painful with-
20 No. 15-1345
drawal symptoms if she did not receive it to control her.
In other words, the court applied the enhancement not
simply because M.M. was an addict, but because Guidry
preyed on her addiction in order to force her to engage in
sexual acts. Because the district court appropriately con-
sidered M.M.’s individual situation, the court correctly
applied the sentence enhancement.
D. Conditions of Supervised Release
The district court imposed thirteen standard condi-
tions of supervised release and three “additional” condi-
tions. Guidry objects to five of these conditions. Guidry
did not raise his objections in his briefing before the dis-
trict court or at his sentencing hearing and so we review
for plain error. United States v. Baker, 755 F.3d 515, 523
(7th Cir. 2014).
i. Standard Condition 4: Support of Dependents
Standard Condition 4 requires Guidry to “use his best
efforts to support his dependents.” Guidry points out
that because he was sentenced to approximately twenty-
five years in prison, his three dependents (children who
were sixteen, twelve, and ten years old at the time of his
sentencing) will be adults when he is released. Because
he is unlikely to gain any dependents while incarcerated,
Guidry argues that the condition is not tailored to him
individually. We found a similar condition requiring a
defendant to “support dependents and meet family re-
sponsibilities” to be impermissibly vague and overbroad
in United States v. Sewell, 780 F.3d 839, 851 (7th Cir. 2015).
Moreover, Guidry is correct that the condition is not ap-
propriately tailored to his personal history. Thus, we va-
No. 15-1345 21
cate the condition and remand to the district court for
clarification.
ii. Standard Condition 7 and Additional Condition 2: Use
of Alcohol
Standard Condition 7 prohibits Guidry from drinking
“alcoholic beverages to intoxication.” This condition con-
flicts with Additional Condition 2, which requires
Guidry to “refrain from use of all alcoholic beverages
throughout his supervised release term.” This incon-
sistency is an error that the court must address on re-
mand. See Baker, 755 F.3d at 529 (“[C]onditions of super-
vised release must make clear what conduct is prohibited
….”).
iii. Standard Condition 13: Notification of Risks
Standard Condition 13 requires Guidry to “notify
third parties of risks that may be occasioned by [his]
criminal record or personal history or characteristics and
shall permit the probation officer to make such notifica-
tion and confirm [his] compliance with such notification
requirement.” In United States v. Kappes, we held that this
condition contains “numerous ambiguities”:
There is no indication of what is meant by
“personal history” and “characteristics” or
what “risks” must be disclosed to which “third
parties.” Presumably, the meaning of these
terms would change from defendant to de-
fendant, which makes definitions particularly
important with this condition.
782 F.3d 828, 849 (7th Cir. 2015) (internal citation and
quotation marks omitted). Those same ambiguities are
22 No. 15-1345
present in this case, and as such, we vacate and remand
this condition for clarification from the district court.
iv. Additional Conditions 1 and 2: Payment for Treatment
Additional Condition 1 requires Guidry to participate
in a sex offender treatment program and “pay the cost of
the program under the guidance and supervision of his
supervising probation officer.” Additional Condition 2
requires Guidry to pay for alcohol and drug abuse treat-
ment. In Baker, we vacated similarly-worded conditions
because they did “not specify what will happen if [the
defendant] bears the burden of paying and is unable to
do so.” 755 F.3d at 529. For the same reason, we vacate
and remand these conditions.
As a final note, we reiterate a point that we under-
scored during oral argument: It is important that in every
sentencing, both the prosecution and defense confirm
that any conditions of supervised release are unambigu-
ous and sufficiently tailored to the defendant’s circum-
stances, and remind the sentencing judge to make the
appropriate findings justifying their imposition.
III. Conclusion
For the foregoing reasons, we VACATE Standard Con-
ditions 4, 7, and 13, as well as Additional Conditions 1
and 2; and REMAND for resentencing consistent with this
opinion. We AFFIRM Guidry’s conviction, prison term,
and all other conditions of supervised release.