In the
United States Court of Appeals
For the Seventh Circuit
No. 14-3265
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH RANEY,
Defendant-Appellant.
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:12-cv-00100-wmc-1 — William M. Conley, Chief Judge.
ARGUED MAY 21, 2015 — DECIDED AUGUST 12, 2015
Before WOOD, Chief Judge, and ROVNER, and WILLIAMS,
Circuit Judges.
ROVNER, Circuit Judge. Kenneth Raney was convicted of
interstate travel with intent to engage in a sexual act with a
minor, in violation of 18 U.S.C. § 2423(b), and attempt to
manufacture child pornography, in violation of 18 U.S.C.
§ 2251(a). He was sentenced to 145 months’ imprisonment,
followed by three years of supervised release. After success-
fully serving the term of imprisonment, Raney faltered during
2 No. 14-3265
the period of supervised release, skirmishing with three
different probation officers. The district court ultimately
revoked his supervised release and returned him to prison. He
appeals from the order revoking his supervised release. We
affirm the court’s revocation of supervised release but we
vacate and remand for resentencing.
A.
At the time of his initial sentencing, the district court
imposed on Raney thirteen “Standard Conditions of Supervi-
sion” and five additional “Special Conditions.” Raney subse-
quently agreed to four additional Special Conditions, for a total
of twenty-two. Shortly after his release from prison in February
2012, Raney’s probation officer reported to the court that
Raney violated two of the conditions of his supervision. In May
2012, the officer reported that Raney had failed to report to the
probation office within seventy-two hours of his release, and
that he had associated with a felon, Timmy Reichling, without
the permission of his probation officer. The court took no
action on these violations because Raney was otherwise
compliant and was shortly transferring out of the Northern
District of Illinois to the Western District of Wisconsin. Raney
was admonished not to associate with the felon (who was also
Raney’s cousin) without seeking the permission of his proba-
tion officer.
A new probation officer took over Raney’s supervision in
Wisconsin in July 2012. In September 2012, the new probation
officer filed two petitions for warrants alleging violations of the
Standard and Special Conditions of supervision. In particular,
the officer alleged that Raney was again in unsupervised
No. 14-3265 3
contact with his cousin, and that he was found in possession of
a memory stick without prior approval from his probation
officer. After a hearing, the district court decided not to revoke
Raney’s supervised release but warned him to adhere scrupu-
lously to the conditions imposed.
In January 2014, Raney was again assigned a new probation
officer, Kristin Kiel. In April of that year, Kiel requested a
modification to the conditions of supervised release, requiring
Raney to submit to electronic monitoring for 120 days because
a polygraph examiner had determined that Raney was not
truthful in answering two questions during a polygraph test.
Raney consented to the monitoring and the court accordingly
modified the conditions. Against this backdrop of Raney’s
repeated issues with supervised release, in September 2014,
Kiel filed another petition for a warrant, this time alleging that
Raney had violated Standard Condition 3, and that he had
failed to make agreed payments towards the cost of his
electronic monitoring.1
Standard Condition 3 provided that “the defendant shall
answer truthfully all inquiries by the probation officer and
follow the instructions of the probation officer[.]” R. 2-4, at 3.
According to Kiel’s petition,
On May 31, 2014, Kenneth Raney was
granted permission to travel outside the
Western District of Wisconsin to visit the
1
At Raney’s revocation hearing, the government failed to present any
evidence regarding Raney’s failure to pay the cost of electronic monitoring.
The court therefore treated that part of the petition as withdrawn.
4 No. 14-3265
Milwaukee County Zoo with his cousin, Dan,
and Dan’s girlfriend, Cindy. Although Mr.
Raney specifically informed this officer that
only he, Dan and Cindy would be going on
the trip, a Jackie Hauser and her two minor
sons also went with them.
On September 10, 2014, during the pre-test
phase of a sex offender polygraph evaluation,
Kenneth Raney told the polygrapher that his
U.S. probation officer was aware of a sexual
relationship he had with “Jackie,” and said
that his U.S. probation officer was aware that
he went camping with “Jackie” and her two
minor sons during the weekend of September
6, 2014. At the time Mr. Raney was inter-
viewed by the polygrapher, this officer was
not aware of Mr. Raney’s relationship with
Jackie or of the camping trip.
R. 16, at 1. After recounting Raney’s past problems with
supervision, the petition continued:
During the pre-test phase of a sex offender
polygraph on September 10, 2014, Mr. Raney
indicated that this officer [Kiel] was aware of
his girlfriend “Jackie,” the fact that she has
two young sons, and the fact that they went
camping in his recreational vehicle the week-
end of September 6, 2014. This was not a true
statement. On the monthly supervision re-
port form for sex offenders submitted by Mr.
No. 14-3265 5
Raney on September 9, 2014, for the month of
August, he indicated that he was seeing
“Jackie Hauser” and noted that she had sons
ages 10 and 12. On September 11, 2014, this
officer received a text message from Mr.
Raney indicating, “Woman im seeing, Jackie,
phone number is xxx-xxx-xxxx.” Mr. Raney
first told his sex offender therapist about
“Jackie” on September 19, 2014. This officer
conducted a telephone interview with Jackie
Houser [sic] on September 16, 2014. Ms.
Houser [sic] stated that she had been dating
Mr. Raney since June 2014. She stated that
she and her sons went to the zoo with Mr.
Raney early in their relationship. She esti-
mated they see each other every other week-
end. She stated she and her two youngest
children, sons ages 12 and 10, went camping
with Mr. Raney in his camper the weekend of
September 6, 2014.
R. 16, at 2.
At the revocation hearing, the United States presented
testimony from Kiel and from Susan McDonald, Raney’s
therapist. Kiel testified that on May 31, 2014 at 4:23 p.m., Raney
sent her a text message:
Dan and cindy are thinking of going to zoo in
milwaukee. They asked me to go if they do.
Told them i ld ask u. so is it ok
6 No. 14-3265
R. 24-3. Standard Condition 1 required Raney to ask for
permission for this trip because Milwaukee is outside the
Western District of Wisconsin, where Raney was serving his
supervised release. R. 2-4, at 3 (“the defendant shall not leave
the judicial district without the permission of the court or
probation officer”). Kiel texted in response, “Who is driving?”
Raney responded, “Dan, cindy is in wheelchair.” Kiel replied,
“I need Dans phone number please. Then text when you leave
and when you return please.” R. 24-3. Raney provided num-
bers for Dan and Cindy.
Kiel testified that the next morning at 7:09 a.m., Raney sent
her a text message stating, “We are going to zoo now.” Kiel
then called Dan, who was, at that very moment, driving to the
zoo. Unbeknownst to Kiel, Dan was talking to her on a hands-
free speaker phone, in a conversation that could be heard by all
of the occupants of the car. Also unbeknownst to Kiel, those
occupants included not only Dan, Cindy and Raney, but also
Cindy’s cousin Jackie Hauser and Jackie’s two sons, aged ten
and twelve. Kiel was concerned about Raney going to a zoo, a
place where he was likely to have contact with children and
she asked Dan to “act as a third-party custodian of sorts” to
ensure that Raney was not alone with children at any time. She
asked him to accompany Raney to the bathroom at the zoo and
to ensure that he was not alone with children. With Dan’s
assent, she approved the trip. Kiel testified that she would not
have allowed Raney to go on the zoo trip with children. Kiel
did not learn that Raney was dating Jackie until she received a
text from Raney on September 11, 2014, several months after
the zoo trip, informing her of the relationship and passing
along Jackie’s phone number.
No. 14-3265 7
When Kiel subsequently called Jackie, she learned that
Jackie had been dating Raney since approximately June 14, that
Jackie and her sons had gone to the zoo with Raney early in the
relationship, and that Jackie and her sons had gone camping
with Raney in his camper on September 6. According to Kiel,
Jackie equivocated when asked if her sons had been left alone
with Raney during any part of the camping trip, at first saying
that it was possible but then stating that she never left her sons
alone with Raney, and that she took them to the bathroom with
her consistently throughout the trip. Given the ages of the
boys, Kiel did not believe this claim. During Kiel’s testimony,
the government admitted into evidence, without objection,
Raney’s monthly written supervision reports to Kiel for May,
June, July and August.2 Although Raney began dating Jackie in
June, he denied being in an intimate relationship on the May,
June and July reports. He admitted the relationship and the
contacts with Jackie’s children only in the August report,
shortly before he was scheduled to submit to another poly-
graph examination.
Susan McDonald testified that Raney was referred to her
for therapy by the United States Probation and Pretrial Office.
McDonald first learned of Raney’s relationship with Jackie
Hauser in a session on September 19, 2014. At that time, Raney
revealed that he had a new girlfriend whom he met through
his cousin in April 2014. Raney told her that Jackie was dating
someone else when they first met and that he first asked her
2
Each monthly report was filed shortly after the end of the reporting
month. For example, the report covering Raney’s conduct in May was filed
in June, and the August report was filed in September.
8 No. 14-3265
out on June 1, when they went to the zoo with her sons. By
August, they were dating regularly and Jackie’s sons some-
times accompanied them on outings. He told McDonald that he
planned to go camping with Jackie and her sons the next day
(September 20) and that they had previously taken a camping
trip.
In his defense, Raney called Dan Reichling, the cousin who
accompanied him to the zoo, and Jackie Hauser.3 Dan testified
that he and his fianceé, Cindy, planned to go to the Milwaukee
zoo. He invited Raney to accompany them. On the way there,
they picked up Cindy’s cousin, Jackie. Dan asked Raney if he
had spoken to his probation officer about the trip and Raney
said he had. After the group picked up Jackie and her sons,
Kiel called and Dan took the call on his car’s speaker phone.
Kiel asked what was going on and Dan told her they were on
their way to the zoo. According to Dan, Kiel then told him not
to let Raney go to the bathroom by himself. Dan understood
from his knowledge of Raney’s conviction that Raney could
have only supervised contact with children. Dan did not
mention to Kiel the presence of Jackie or the children because
he believed that Raney had already told his probation officer
about them. Raney remained silent during the call.
Jackie Hauser testified that she met Raney through her
cousin on May 3, 2014 and began dating him in August of that
year. Although she saw him a few times at events with her
cousin between May and August, she was dating someone else
3
Dan and Timmy Reichling are both cousins of Raney. Although Timmy
is a convicted felon with whom Raney could not associate without
supervision, the record reveals no similar concern with Dan.
No. 14-3265 9
at that time. She acknowledged going to the zoo on June 1st
with Dan, Cindy, Raney and her sons, at the invitation of
Cindy. She denied having an intimate relationship with Raney
until August 2014, and admitted going camping with Raney
and her sons on September 6 and September 20, 2014, in
Raney’s camper.
From this evidence, the government argued that Raney
violated Standard Condition 3 with a “lie by omission” when
he asked for permission to go to the zoo but failed to disclose
that Jackie Hauser and her sons would be present on the trip,
instead telling the probation officer that he was going with Dan
and Cindy. The government also noted that Raney was in the
car with Jackie and her children when his probation officer was
advising Dan not to allow Raney to go to the bathroom by
himself, indicating that this was an “obvious lie by omission.”
When Raney’s counsel countered that the government had not
met its burden of proof, the court stated that Raney failed to
comply with his reporting obligations because he had filed
reports with his probation officer in May, June, July and
August denying that he had gone to any location where he
viewed, was near to, or spoke to anyone who appeared to be
under the age of eighteen, when he in fact had gone to the zoo
with children and had gone camping with children. The court
noted that Raney deliberately omitted information regarding
his contacts with children and affirmatively lied about such
contact in his monthly reports. The court also noted that Raney
“specifically only referred to his cousin and his cousin’s
girlfriend and he knows he only has approval for that contact.”
R. 31, at 82. The court therefore revoked Raney’s supervised
10 No. 14-3265
release and sentenced him to nine months’ imprisonment and
twenty-four months of supervised release.
In a subsequent written order, the court issued findings of
fact:
Mr. Raney was granted permission to travel
outside the Western District of Wisconsin to
visit the Milwaukee County Zoo on May 31,
2013, [sic] with his cousin and his cousin’s
girlfriend. Although the defendant specifi-
cally informed Probation Officer Kris Kiel
that only his cousin, his cousin’s girlfriend
and he would be going to the zoo, another
adult female and her two minor sons went
with them as well. The defendant’s supervis-
ing probation officer was not made aware
that this other adult and two minors accom-
panied the group to the zoo until almost four
months later.
R. 25, at 2-3. The court found the failure to disclose particularly
egregious because Raney was in the car and able to hear the
phone call between Kiel and Dan and yet did nothing to correct
the misimpression, only to deny any contact with children in
a written report filed two days later. The court concluded that
Raney’s intent to deceive was confirmed by the testimony of
his own witnesses, who admitted that Raney had engaged in
repeated unauthorized contacts with children while at the
same time denying these contacts in his written reports to his
probation officer. The court also imposed a new Special
Condition 10 for Raney’s supervised release, requiring him to
No. 14-3265 11
sell his recreational vehicle, which we will discuss below.
Raney appeals.
II.
Raney originally presented four issues for appeal: (1)
whether the court’s consideration of polygraph evidence
violated his confrontation rights under the Fifth Amendment
and Fed. R. Crim. P. 32.1(b)(2)(C); (2) whether the court erred
when it found that Raney violated Standard Condition 3 of his
supervised release by not disclosing information to his proba-
tion officer and by lying to a polygraph examiner; (3) whether
the court erred by failing to consider relevant section 3553(a)
factors4 when it sentenced Raney to nine months’ imprison-
ment, twenty-four months of supervised release, and imposed
a new condition of supervised release requiring him to sell his
RV camper; and (4) whether the ban on Raney’s use of a mobile
home (Special Condition 10) is null because it was not orally
pronounced as part of his sentence. At oral argument for this
appeal, Raney’s lawyer informed the court that Raney had
already completed the nine months of imprisonment ordered
by the district court, and that his client might wish to withdraw
certain arguments as a result. Counsel subsequently filed a
letter with the court withdrawing his challenge to the admis-
sion of the polygraph evidence, noting that “a new revocation
hearing will not provide any effective relief given that Mr.
Raney has served his imprisonment.” Raney also withdrew
“his Thompson challenge (issue III),” noting that he “can contest
improper supervised release conditions in the trial court via an
4
See 18 U.S.C. § 3553(a).
12 No. 14-3265
18 U.S.C. § 3583(e)(2) motion without the risk of longer
imprisonment posed by a full resentencing hearing.”5 How-
ever, Raney “continue[d] to assert that a forced sale of his RV
violates his Due Process rights.” He therefore sought a limited
remand on the RV issue if this court were to uphold his
revocation. Because Raney continued to challenge the validity
of his revocation while at the same time professing a desire to
avoid a new revocation hearing and the possibility of a longer
term of imprisonment, we asked Raney to clarify to the court
whether he meant to challenge the revocation itself or was
limiting his appeal to the issues related to the forced sale of his
RV. His lawyer responded by withdrawing his withdrawal:
Mr. Raney has informed counsel that he
wishes to challenge the revocation itself.
Accordingly, he does not limit his appeal to
the forced sale of the RV. He wishes to assert
all issues raised in his briefs.
June 28, 2015 Rule 28(j) Letter of Counsel. We will therefore
address all of the issues originally raised in Raney’s appeal.6
A.
5
See United States v. Thompson, 777 F.3d 368 (7th Cir. 2015).
6
Although Raney has served his sentence of imprisonment, he remains on
supervised release, and therefore his appeal is not moot. United States v.
LaShay, 417 F.3d 715, 716 n.1 (7th Cir. 2005) (when a defendant has
completely served a term of imprisonment, the appeal is not moot where
he is still serving a term of supervised release because on remand, the
district court could still alter the overall sentence).
No. 14-3265 13
Raney first argues that the court’s consideration of evidence
from a non-testifying polygraph administrator violated his
right to confront an adverse witness under the Fifth Amend-
ment and under Federal Rule of Criminal Procedure
32.1(b)(2)(C). At the revocation hearing, the government
introduced into evidence two polygraph reports, dated April
10, 2014 and September 12, 2014. The revocation petition
alleged that Raney falsely told the polygraph examiner for the
September test that he had informed his probation officer
about his relationship with Jackie Hauser, and that the officer
was aware that he had gone camping with Hauser and her two
children on September 6. At the government’s offer of the first
report into evidence, Raney’s counsel took exception, stating,
“I object on Rule 702 grounds. No foundation that’s reliable.”
The court asked for clarification, saying, “You’re objecting
because of its lack of expertise?” Counsel replied, “It has
polygraph results in it.” The court then admitted the report
subject to that objection, stating that it did not intend to “rely
on the science of it,” but only “rely on it as information that
this probation officer had before her in making decisions about
how to proceed.” When the government introduced the second
polygraph report, the court stated that it would be admitted on
the same grounds as the first, “subject to the 702 limitation,
unless, Counsel, you wish to add any other objection.” Raney’s
counsel replied, “No. That’s fine, Judge.” R. 31, at 28-29 and 41.
As is clear from this exchange, Raney did not raise a Fifth
Amendment or Rule 32.1 objection to the polygraph exam-
iner’s reports at the hearing. We will therefore review the
district court’s decision for plain error. United States v. Webster,
775 F.3d 897, 902 (7th Cir.), cert. denied, 135 S. Ct. 2368 (2015);
14 No. 14-3265
United States v. McLaughlin, 760 F.3d 699, 706 (7th Cir. 2014). See
also United States v. Blount, 502 F.3d 674, 677-78 (7th Cir. 2007)
(noting that an objection on one ground to the admission of
evidence does not preserve other, unasserted grounds for
appeal). In order to reverse for plain error, we must find (1)
error (2) that is plain, and (3) that affects the defendant's
substantial rights. United States v. Olano, 507 U.S. 725, 732
(1993); McLaughlin, 760 F.3d at 706. An error is plain if it is clear
or obvious. Olano, 507 U.S. at 734; McLaughlin, 760 F.3d at 706.
An error affects the defendant's substantial rights when it is
prejudicial, that is, when it has affected the outcome of the
district court proceedings. Olano, 507 U.S. at 734. It appears
from the record that the court did not rely in any manner on
the April 10 report and Raney does not assert any particular
prejudice from the April 10 report. We therefore will focus on
the September 12 report.
Even if we assume for the sake of argument that the court
plainly erred in admitting this evidence, we reject Raney’s
challenge because the evidence did not affect the outcome of
the proceedings. First, the district court expressly limited the
use of this evidence, indicating that it would not accept the
science of either polygraph exam but would rely on the reports
only to show what information the probation officer had
available when making her decisions. Ultimately, the district
court did not mention the polygraph evidence in its oral ruling
and mentioned the September 12 report only in passing in its
written order:
Unlike the October 4, 2013, revocation hear-
ing, the court can also find no comfort in his
No. 14-3265 15
recent statements to a polygrapher. On Sep-
tember 10, 2014, the defendant told the
polygrapher that his supervising probation
officer was aware of a sexual relationship he
had with the mother of the two minor males
and that the defendant had gone camping
with the mother and the two minor males
during the weekend of September 6, 2014,
when in fact the defendant’s supervising
officer was not aware of the defendant’s
romantic relationship or of the camping trip.
R. 25, at 3. In other words, the court did not weigh this evi-
dence against Raney, but rather commented that it could not
use the polygraph in Raney’s favor, as it had done at a prior
revocation hearing. Indeed, at no point in the oral or written
decision did the court use Raney’s statements to the polygraph
examiner as evidence that he violated Standard Condition 3.
Because there is no indication that the court weighed the
polygraph evidence against Raney, the admission of this
evidence did not affect the outcome of the district court
proceedings.7 There is therefore no plain error.
B.
7
Raney’s August monthly report to his probation officer was received in
that office on September 9; the polygraph exam occurred on September 10;
Raney texted his probation officer regarding Hauser on September 11; and
the polygraph report was issued on September 12. The court’s statement
was thus literally true. Kiel had not yet seen Raney’s August monthly report
when Raney told the polygraph examiner that Kiel was aware of his
relationship with Hauser and his contact with her children.
16 No. 14-3265
Raney next asserts that the court erred when it found that
he violated Standard Condition 3 by failing to disclose infor-
mation to his probation officer and giving false information to
a polygraph examiner. According to Raney, the government
failed to prove that he lied and in particular failed to prove that
he lied in response to an inquiry from his probation officer.
Instead, he contends, the government demonstrated at most
that he omitted certain information when he asked for permis-
sion for the zoo trip. Standard Condition 3, he asserts, “only
prohibits affirmative misinformation in response to a probation
officer’s questions.” Defendant’s Brief at 19. Moreover, the
“baldest of lies to the polygraph administrator could not be a
violation of Standard Condition No. 3,” according to Raney,
because the polygraph administrator is not his probation
officer. At a revocation hearing, the government must prove by
a preponderance of the evidence that the defendant violated a
condition of supervised release. 18 U.S.C. § 3583(e)(3); United
States v. Preacely, 702 F.3d 373, 375 (7th Cir. 2012). In general,
we review the revocation of supervised release for abuse of
discretion, and we review the district court's factual findings
supporting that revocation for clear error. Preacely, 702 F.3d at
375.
As we noted above, the court did not rely on any lies to the
polygraph examiner in finding that Raney violated Standard
Condition 3, and that argument therefore requires no further
discussion. Instead, the court found that the government
proved at least two misrepresentations to the probation officer:
first, the government demonstrated that Raney secured
permission to leave the district and go to the zoo by omitting
from his request the fact that Hauser and her two minor sons
No. 14-3265 17
were also accompanying him on the trip. Second, Raney filed
false supervision reports to his probation officer in May, June,
July and August of 2014, denying that he had unreported
contact with minors when in fact he had gone to the zoo with
children and had other unreported contacts with children.
R. 31, at 79 (“And I’m looking just at the government exhibits
and on – in June, July and August, I guess May as well, he is
asked have you been at or gone to any location where you
viewed or near [sic] or spoke to anyone who was and/or
appeared to be 18 years of age or younger and you have not
reported to your officer and treatment provider, and each time
he said no. He had been on repeated trips in an RV with
underage children. He’d gone to the zoo with underage
children.”); R. 31, at 80 (“he’s been warned twice by this court
to make sure he’s in strict compliance and instead he’s having
multiple contacts with underage children and deliberately
omitting that information; in fact, lying about it in his reports
every month. … I don’t get what you think the government
needed to prove beyond that.”); R. 25, at 2-4 (noting that Raney
both omitted information in his request to travel outside the
district to the zoo and that he “affirmatively denied in writing”
in his monthly supervision report to his probation officer that
he had unreported contact with children).
Although Raney objected in his opening brief to the district
court’s use of a lie of omission to find a violation of Standard
Condition 3, he did not object to the court’s finding that he
affirmatively lied in his monthly supervision reports until his
reply brief, after the government pointed out this second basis
for the district court’s holding that he violated Standard
Condition 3. In his reply brief, Raney complained for the first
18 No. 14-3265
time that the revocation petition did not allege that his
monthly reports were a violation of Standard Condition 3, and
that the lack of advance notice for this violation denied him
due process under the Fifth Amendment and
Rule 32.1(b)(1)(B)(i). Raney’s contention fails for at least two
reasons.
First, Raney’s failure to attack in his opening brief the
district court’s holding that he violated Standard Condition 3
when he affirmatively lied in the monthly supervision reports
constitutes a waiver of this objection. United States v. Vallone,
698 F.3d 416, 448 (7th Cir. 2012), vacated on other grounds,
133 S. Ct. 2825 (2013), reinstated in relevant part, 752 F.3d 690
(7th Cir. 2014) (having ignored a particular rationale for the
district court's ruling in presenting an issue and making an
initial argument on appeal, a defendant waived this aspect of
his challenge); United States v. Fuchs, 635 F.3d 929, 933-34 (7th
Cir. 2011) (failure to address district court's alternative holding
on an issue waives any challenge to that holding); United States
v. Alhalabi, 443 F.3d 605, 611 (7th Cir. 2006) (arguments raised
for the first time in reply briefs are waived). In fact, Raney also
failed to object to the admission and use of those reports at the
revocation hearing itself. See R. 31, at 37 (admitting without
objection the monthly reports for May, June, July and August).
Second, Raney has not identified any unfair prejudice from
the government’s use of the monthly supervision reports.
Recall that these were reports that Raney himself submitted to
his probation officer. He could hardly be surprised by the
contents of reports that he authored. See United States v.
Rodriguez, 803 F.2d 318, 321 (7th Cir. 1986) (where the evidence
No. 14-3265 19
is consistent with the language of the indictment, a defendant
can hardly claim unfair surprise because the government was
able to discover his own deed).
Finally, Raney wrote the reports in response to written
inquiries from the probation officer. That fact eviscerates his
argument that proof of a violation of Standard Condition 3
required a lie in response to an inquiry. The probation officer,
through the monthly reports, posed numerous inquiries,
including the key question here of whether Raney had “been
at or gone to any location where you viewed, were near or
spoke to, anyone who was and/or appeared to be 18 years of
age or younger, that you have not reported to your officer and
treatment provider?” During the month that Raney went to the
zoo with Jackie Hauser’s children, he answered “no” to this
question. R. 24-5, at 3. Even if we were to accept Raney’s
contention that a lie of omission was insufficient to meet the
language of Standard Condition 3, or that the lie must have
been in response to an inquiry, this affirmative denial on the
monthly report alone was enough for the court to find a
violation of that Condition. There was no clear error in that
factual finding and no abuse of discretion in revoking super-
vised release on that basis. Preacely, 702 F.3d at 375.
C.
Raney next asserts that the district court erred when it
failed to consider the relevant section 3553(a) factors when it
imposed a sentence of nine months’ imprisonment, twenty-
four months of supervised release and certain discretionary
conditions of supervised release. He also contends that the
court erred in two ways in imposing a new Special Condition
20 No. 14-3265
10. First, he argues that the court abused its discretion in
ordering him to sell his RV without giving him prior notice of
this condition and an opportunity to object. Second, he
complains that the court’s oral pronouncement of this condi-
tion was more narrow than the written order, and that the oral
pronouncement must control. Our review of a sentence
imposed in a revocation proceeding is highly deferential.
United States v. Boultinghouse, 784 F.3d 1163, 1177 (7th Cir.
2015). We have likened it to “‘the narrowest judicial review of
judgments we know,’ namely judicial review of sanctions
imposed by prison disciplinary boards.” United States v.
Robertson, 648 F.3d 858, 859 (7th Cir. 2011) (quoting United
States v. Kizeart, 505 F.3d 672, 675 (7th Cir. 2007)). We will
sustain the sentence so long as it is not plainly unreasonable.
Boultinghouse, 784 F.3d at 1177; Kizeart, 505 F.3d at 673–75.
Because the parties agree on the last of the sentencing issues
raised by Raney, we will address it first. At the very end of the
sentencing hearing, the government stated that Probation
Officer Kiel requested an additional special condition that
Raney “not have an RV because it’s a movable residence which
makes it very difficult to monitor in terms of a sex offender.”
The court responded, “The request being that he sell it?” Kiel
then replied, “Sell it.” R. 31, at 89-90. Raney’s attorney noted
that Raney disclosed his purchase of the RV on his July report
to the probation officer. Without further discussion, the court
then ruled:
I’m inclined to say that the RV is just not
appropriate given the defendant’s use of it
without disclosing its use. And so I am going
No. 14-3265 21
to require that he sell it and not own it during
the period of his condition of release.
R. 31 at 91. In its written order, however, the court stated the
terms of the new Special Condition 10 more broadly:
In addition, given his misuse of the privilege,
special condition no. 10 is added requiring
the defendant to sell his RV Camper and
prohibiting him from owning any mobile
home, whether self-propelling or pulled on a
trailer, during the period of supervised re-
lease.
R. 25, at 5.
The government concedes that, when there is an inconsis-
tency between the oral and written pronouncements of a
sentence, the sentence pronounced from the bench controls.
United States v. Baker, 755 F.3d 515, 523 (7th Cir. 2014); United
States v. Alburay, 415 F.3d 782, 788 (7th Cir. 2005). In its initial
brief, the government asked this court to vacate Special
Condition 10 and order a limited remand with a corrective
instruction to remove the language added in the written
version of the order. The government otherwise urged the
court to affirm Raney’s new sentence, including the imposition
of Special Condition 10 as pronounced at the sentencing
hearing. However, in its June 2, 2015 Rule 28(j) letter, the
government altered its stance:
In further reviewing the condition for the sale
of defendant’s RV, the government now
concedes the case should be remanded so the
22 No. 14-3265
district court can consider the condition in
light of any additional arguments by the
parties. See United States v. Shannon, 743 F.3d
496, 500-501 (7th Cir. 2014).
In Shannon, we held that a district court may impose a
special condition of supervised release if, first, the condition is
reasonably related to the penological purposes set forth in 18
U.S.C. § 3553(a)(1), (a)(2)(C), and (a)(2)(D). 743 F.3d at 500. See
also 18 U.S.C. § 3583(d). The condition must be reasonably
related to (1) the defendant's offense, history and characteris-
tics; (2) the need for adequate deterrence; (3) the need to
protect the public from further crimes of the defendant; and (4)
the need to provide the defendant with treatment. Shannon,
743 F.3d at 500; United States v. Goodwin, 717 F.3d 511, 522
(7th Cir.), cert. denied, 134 S. Ct. 334 (2013); United States v.
Angle, 598 F.3d 352, 360–61 (7th Cir. 2010). Second, a special
condition cannot involve a greater deprivation of liberty than
is reasonably necessary to achieve the goal of deterrence,
incapacitation, and rehabilitation. Shannon 743 F.3d at 500. And
third, a special condition must be consistent with any pertinent
statement that the United States Sentencing Commission
issues. Shannon, 743 F.3d at 500; 18 U.S.C. § 3583(d)(3). The
district court obliquely addressed the factors that we outlined
in Shannon, and that explanation was arguably sufficient.
However, the record also reflects that Raney was afforded no
notice that the government would seek this new condition, and
Raney had no meaningful opportunity to object. United
States v. Kappes, 782 F.3d 828, 842 (7th Cir. 2015) (when impos-
ing conditions of supervised release, advance notice is required
for conditions that are not listed in the statute or guidelines).
No. 14-3265 23
We therefore accept the government’s confession of error,
vacate Special Condition 10 in its entirety, and remand so that
the court may engage in a full analysis of the appropriateness
of Special Condition 10.
We turn finally to Raney’s broader objections to his nine
month sentence of imprisonment and the additional twenty-
four months of supervised release, which continue under the
conditions imposed at his first sentencing, as modified over the
years. Raney asserts that, in setting his new sentence, the court
failed to consider the factors set forth in section 3553(a)(1),
(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6) and (a)(7). See
18 U.S.C. § 3583(e)(3) (setting forth the factors that a court must
consider when deciding whether to revoke a term of super-
vised release and require the defendant to serve in prison all or
part of the term of supervised release). He contends that the
court both failed to consider the relevant factors and also relied
on irrelevant factors. He cites our opinion in United States v.
Thompson, 777 F.3d 368 (7th Cir. 2015), for the proposition that
the court may not impose an additional term of supervised
release without evaluating the propriety of the conditions of
supervised release using the factors listed in section 3553(a).
The government concedes that the district court did not
explain its choice of a twenty-four month term of supervised
release or justify its re-imposition of the original conditions of
supervised release. Nevertheless, because Raney did not object
on this ground at his sentencing hearing, the government urges
us to find that the court committed no plain error. At most, the
court asks that we remand so that the court may explain its
sentence more fully.
24 No. 14-3265
But without any explanation for its selection of a twenty-
four month term of supervised release or the conditions
imposed, we are unable to review the propriety of the district
court’s decision. Kappes, 782 F.3d at 845 (in order to allow for
meaningful appellate review, a district court must justify the
conditions and the length of the term at sentencing by an
adequate statement of reasons, reasonably related to the
applicable § 3553(a) factors). We therefore vacate and remand
the twenty-four month term of supervised release so that the
district court may apply the appropriate sentencing factors and
explain its decision.
The court arguably justified its selection of the nine month
term of imprisonment. See United States v. Phillips, 2015 WL
3937527, *3, — F.3d — (7th Cir. 2015) (court’s comments
justifying within-guidelines sentence sufficient where court
correctly calculated guidelines range and noted the relevant
statutory factors supporting the sentence). And as we noted in
Phillips, to the extent that Raney argues that the list of factors
in section 3583(e) is exclusive, he is mistaken. — F.3d at —,
2015 WL 3937527 at *2. A district court may consider the
factors listed in other subsections of section 3553(a) even
though those factors are not mentioned in § 3583(e), so long as
the court relies primarily on the factors listed in § 3583(e).
— F.3d at —, 2015 WL 3937527 at *2. But “[w]hen a sentence
consists of more than one form of punishment, such as prison,
a fine, restitution, and supervised release, and one of the forms
is as in this case altered by the appellate court, it cannot be
assumed that the others should be unaffected.” United States v.
Downs, 784 F.3d 1180, 1182 (7th Cir. 2015) (citing Kappes,
782 F.3d at 866-67; Thompson, 777 F.3d at 382). We therefore
No. 14-3265 25
vacate the entire sentence and remand for resentencing
consistent with this opinion. On remand, the court should
apply our recent decisions addressing the problem of unjusti-
fied, vague or inappropriate conditions of supervised release.
See United States v. Sandidge, 784 F.3d 1055, 1067-1069 (7th Cir.
2015); Kappes, 782 F.3d at 847-863; Thompson, 777 F.3d at 373-82.
Many years have passed since Raney was first sentenced and
the court first ordered the conditions governing his supervised
release. The court and the probation office now have consider-
able experience understanding the challenges involved in
supervising Raney. The conditions of supervised release may
now be tailored to address those challenges as well as other
issues the district court deems necessary after considering the
factors set forth in section 3583(e).
III.
In sum, we affirm the district court’s decision to revoke
Raney’s supervised release. We vacate and remand his
sentence for a full resentencing.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART.