In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 13-3373

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WALBERT KEITH FARMER,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, New Albany Division.

No. 4:12-cr-00026-TWP-MGN-1 — Tanya Walton Pratt, Judge.

____________________

ARGUED MAY 28, 2014 — DECIDED JUNE 23, 2014

____________________

Before FLAUM, MANION, and TINDER, Circuit Judges.

TINDER, Circuit Judge. Defendant-Appellant Walbert Keith 

Farmer appeals the district court’s imposition of two special 

conditions for his three-year term of supervised release: one 

prohibiting him from self-employment, and the other requiring him to submit to the search of his person, vehicle, office, 

residence, and property at the request of his probation officer, even without a warrant or reasonable suspicion. Because we conclude that the special conditions do not bear a 
2 No. 13-3373

reasonably direct relationship to Farmer’s underlying 

crimes, we vacate the special conditions in question and remand for further consideration.

I

In 2012, Farmer received information from a golfing and 

gambling companion that a man named Walter Allen, an 

employee at the Horseshoe Casino in Elizabeth, Indiana, had 

used a company credit card without authorization. Armed 

with this information, Farmer, utilizing the alias “Jim Taylor,” contacted Allen via cellular phone from North Carolina 

and threatened to reveal the information to the Casino’s 

management unless Allen paid him off. Farmer even reeled 

in an associate, a female acquaintance who he met in West 

Virginia and traveled with to Indiana so that she could collect the extortion money from Allen. The scheme unraveled 

after Allen contacted law enforcement, which apprehended 

Farmer’s female associate and foiled the scheme. Farmer was 

arrested and indicted. Under a plea agreement, Farmer ultimately petitioned to plead guilty to two counts, violations of 

18 U.S.C. §§ 1952(a)(3) and 875(d), for attempting to extort 

Allen and using interstate communications in the execution 

of his plot. 

The district court scheduled a single hearing for the acceptance of the plea and sentencing. A presentence investigation report (“PSR”) was prepared prior to the hearing, and 

detailed Farmer’s background and criminal history. The report stated in general terms that Farmer had been selfemployed since 2002 and had sold sports schedules and related marketing products. How financially successful 

Farmer was at this endeavor was unclear: he reported earning approximately $500-$700 a month, but had reported only 
No. 13-3373 3

$1,203 of income to the government for the period between 

2002 and 2012. Farmer’s criminal history was more clear: he 

had five prior felony convictions, including a 2003 conviction for using interstate communications to transmit extortionate threats, three convictions for obtaining property by 

false pretenses (apparently filed by disgruntled customers of 

his sports-schedule business), and one conviction for larceny 

relating to the fraudulent purchase of a golf cart. Neither the 

PSR nor any document disclosed to the parties included information about the conditions of supervised release that the 

Probation Service intended to recommend to the district 

court.

Farmer was sentenced to incarceration for 22 months, to 

be followed by three years of supervised release. As part of 

the sentencing, the district court announced the conditions 

of supervised release, recommended by the probation service and adopted by the court, including the requirement 

that

The defendant shall submit to the search, with 

the assistance of other law enforcement as necessary, of his person, vehicle, office, business, 

and residence, and property, including computer systems and peripheral devices. The defendant shall submit to the seizure of any contraband found and shall warn other occupants 

that the premises may be subject to searches.

After enumerating the initial set of supervised release 

conditions, the court stated, “Counsel, those are the reasons 

the Court intends to impose the sentence as stated. Is there 

any legal reason, other than those already argued, why sentence should not be imposed as stated? Government?” The 
4 No. 13-3373

Government then raised two additional suggested conditions of supervised release, one of which was to bar Farmer 

from self-employment during his term of supervised release. 

The district court then turned to Farmer’s counsel to ask for 

any objections (apparently regarding the Government’s two 

suggested conditions, not the conditions at large), at which 

point counsel objected that “I don’t think this Court should 

restrict his ability to earn a living. If he wants to be an entrepreneur and be in business for himself, he ought to be able to 

do that.” The district court overruled that objection and did 

not return to Farmer’s counsel to solicit objections to the first 

set of supervised release conditions. Instead, the district 

court said “those are the conditions of supervised release,” 

and shortly thereafter reiterated that “the Court is going to 

impose the sentence as stated.” After imposing sentence, the 

court queried “Anything else?” to which both parties responded in the negative.

Farmer filed a timely appeal.

II

A. Supervised Release Conditions Generally

“Apart from a handful of conditions required by the Sentencing Reform Act itself, conditions of supervised release 

are discretionary.” United States v. Siegel, Nos. 13-1633, 13-

1640, 13-1767, --- F.3d ----, 2014 WL 2210762, at *1 (7th Cir. 

May 29, 2014) (citations omitted). Some of the discretionary 

conditions are “standard,” found in the sentencing guidelines, U.S.S.G. § 5D1.3(c); and still others are “special conditions” that are imposed for particular offenses. § 5D1.3(d)–

(e). Id. While the sentencing guidelines list some conditions 

that are recommended for particular offenses, the list is “not 
No. 13-3373 5

intended to be exhaustive; sentencing judges can impose 

conditions of their own devising.” Siegel, 2014 WL 2210762 at 

*1. Be that as it may, all conditions must “comply with overall federal sentencing policy as stated in 18 U.S.C. § 3553(a), 

especially subsection (a)(2), which requires the judge to consider ‘the need for the sentence imposed–(A) to reflect the 

seriousness of the offense, to promote respect for the law, 

and to provide just punishment for the offense; (B) to afford 

adequate deterrence to criminal conduct; (C) to protect the 

public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocational 

training, medical care, or other correctional treatment in the 

most effective manner.’” Id. “[A] district judge is required to 

give a reason, consistent with the sentencing factors in section 3553(a), for every discretionary part of the sentence that 

the judge is imposing, including any non-mandatory conditions of supervised release.” United States v. Bryant, --- F.3d

---, No. 13-3845, 2014 WL 2612349, at *2 (7th Cir. June 12, 

2014). 

B. Disclosure of Special Conditions

We briefly pause to express our concern that the parties 

were not privy to the conditions of supervised release suggested by the probation office prior to the hearing. “Although the probation officer who prepares the [PSR] also 

prepares a separate document entitled ‘Sentencing Recommendation,’ which includes recommended conditions of supervised release, the district court is authorized to conceal 

the recommendations from the defendant and his lawyer.” 

Bryant, 2014 WL 2612349, at *1 (citing Fed. R. Crim. P. 

32(e)(3)). The Sentencing Recommendation in this case, 

which comprised the first set of supervised release condi-
6 No. 13-3373

tions announced by the district court, was designated as confidential under the Southern District of Indiana’s Local 

Criminal Rule 13.1(c) (“The sentencing recommendation 

provided to the court by the probation office will not be disclosed except to the court.”). When asked at oral argument, 

both counsel stated that they had not seen this document. 

We recognize that Federal Rule of Criminal Procedure 

32(e)(3) permits this confidentiality in certain circumstances, 

particularly to “allow probation officers the opportunity to 

provide a candid assessment of the defendant to the court 

and to protect the effectiveness of the probation officer in the 

supervisory context.” Bryant, 2014 WL 2612349, at *1 (quoting United States v. Peterson, 711 F.3d 770, 776 and n.2 (7th 

Cir. 2013)). However, the Rule requires that “[f]actual information in the probation officer’s recommendation must be 

disclosed to the defendant.” Id. (citing Fed. R. Crim. P. 

32(i)(1)(B)). And, as a matter of policy, “not knowing the 

recommendation itself may make it difficult for the defendant to mount an effective challenge to it.” Id. at *2. Certainly, 

“[d]efendant and lawyer are charged with knowledge of the 

sentencing guidelines, which list the standard conditions 

along with a number of special ones,” but it is almost impossible “to prepare to respond to every possible condition of 

supervised release that the judge may impose without any 

advance notice, given that the judge is empowered to impose special conditions that are not listed in the guidelines 

or anywhere else for that matter.” Id. at *4. And it seems 

problematic to conclude that the defendant waives objections to special conditions if he does not properly confront 

conditions presented for the first time at the sentencing hearing. For this reason and others, we recommend that sentencing judges follow the best practices outlined in Siegel when 
No. 13-3373 7

imposing conditions of supervised release, particularly the 

suggestion that judges “[r]equire the probation service to 

communicate its recommendations for conditions of supervised release to defense counsel at least two weeks before 

the sentencing hearing.” Siegel, 2014 WL 2210762, at *11.

C. Special Condition 4 (The Search Condition)

1. Standard of Review

Before we proceed to review the condition on its merits, 

we must first determine the proper standard of review. The 

Government argues that because Farmer did not raise an objection despite the district court’s general “anything else?” 

query at the end of sentencing, he waived his objection to 

the special condition and the condition is unreviewable. 

However, Farmer neither explicitly approved the search 

condition, cf. United States v. O’Malley, 739 F.3d 1001, 1007 

(7th Cir. 2014) (holding that an affirmative statement of no 

objection constitutes waiver), nor had a strategic reason to 

forego the argument at the hearing, cf. United States v. Allen, 

529 F.3d 390, 395 (7th Cir. 2008) (“If a specific objection was 

not raised at sentencing, we will view it as having been 

waived if the defendant had a strategic reason to forego the 

argument, that is, only if the defendant's counsel would not 

be deficient for failing to raise the objection.”). And Farmer’s

response to the district court’s general query of whether 

there was “anything else”—a query that came after the

statement that the court was imposing sentence—cannot 

constitute waiver. 

Even so, there is some question as to whether the objection to the search condition was forfeited because of 

Farmer’s silence at the hearing and should be reviewed for 
8 No. 13-3373

plain error, or whether it should be reviewed for an abuse of 

discretion because there was no opportunity for Farmer to 

object before the sentence was imposed. (As we note above, 

“not knowing [the Probation Service’s] recommendation [for 

supervised release terms] . . . may make it difficult for the 

defendant to mount an effective challenge to it.” Bryant, 2014 

WL 2612349, at *2.) We have “recognized some tension in

our cases as to the proper standard of review in these circumstances.” United States v. Shannon, 743 F.3d 496, 499 (7th 

Cir. 2014) (detailing the conflict between our cases that have 

reviewed for plain error where a defendant did not “object” 

to a “judicial choice after it ha[d] been made” and cases 

where we reviewed for abuse of discretion because of the 

potential lack of notice to the defendants regarding the 

court’s impending filing of its sentencing order); see also 

United States v. Goodwin, 717 F.3d 511, 522–23 (7th Cir. 2013) 

(noting the conflict between cases like United States v. Bartlett, 567 F.3d 901, 910 (7th Cir. 2009), and United States v. 

Courtland, 642 F.3d 545, 547 (7th Cir. 2011), but reasoning 

that “[w]e need not resolve whether plain-error review . . . or 

review for abuse of discretion . . . applies in these circumstances, since we find that the special conditions must be vacated under either standard”). 

As in Shannon and Goodwin, we leave for another day the 

decision on the proper standard of review, as the outcome 

here is the same regardless of the standard used. 

2. The District Court’s Lack of Explanation 

We note that the district court did not give a reason for 

imposing the search condition. See Transcript of Plea and 

Sentencing and Competency Hearing, United States v. 

Farmer, No. 4:12-cr-00026 (S.D. Ind. Nov. 14, 2013), ECF No. 
No. 13-3373 9

84, at 52 (imposing search condition without explanation). 

Farmer contends that the search condition appears to be a 

standard condition suggested by the Probation Service of the 

Southern District of Indiana, claiming to have found it imposed in 39 of 42 cases examined in that court—a statistic 

not disputed by the government. The search condition is a 

broad restriction that requires him to submit to searches of 

his person, car, place of business, residence, computer, and 

other property, with no requirement that the entity conducting the search have any suspicion to justify the search. The 

searches may be conducted just by a probation officer, but 

also with the assistance of law enforcement. Farmer is also 

subject to the “seizure of any contraband found” during 

these searches. The scope of this search clause is broader 

even than the explicit searches that the sentencing guidelines 

authorize for the purpose of monitoring sex offenders: the 

latter provision requires reasonable suspicion that the defendant has violated a condition of supervised release as a 

prerequisite for the search, whereas the search condition to 

which Farmer is subject requires no suspicion, reasonable or 

otherwise, to trigger a search. See 18 U.S.C. § 3583(d)(3) (authorizing a court to order, as an explicit condition of supervised release, that a person and his property submit to 

search “by any law enforcement or probation officer with 

reasonable suspicion concerning a violation of a condition of supervised release or unlawful conduct by the person”) (emphasis 

added); U.S.S.G. § 5D1.3(d)(7)(C) (recommending as a special condition of supervised release for sex offenders “[a] 

condition requiring the defendant to submit to a search, at 

any time, with or without a warrant . . . upon reasonable suspicion concerning a violation of a condition of supervised release or 

unlawful conduct by the defendant”) (emphasis added).
10 No. 13-3373

“[W]e are . . . at a loss to see how this broad search and 

seizure authority is connected to [Farmer’s] offense, history, 

and personal characteristics, or how it is reasonably necessary to furthering the deterrence, public protection, and rehabilitative goals articulated in 18 U.S.C. § 3583(d)(2).” 

Goodwin, 717 F.3d at 523. The record does not indicate that 

contraband played any role in Farmer’s current or past offenses. “Although we stop short of stating that such restrictions could never be appropriate in these circumstances, 

our skepticism leads us to conclude that the district court 

must provide some justification for these particular conditions.” Id. The error here is not harmless, because the consistency of this condition with the statutory sentencing factors is far from plain: it is difficult to identify how this search 

condition is reasonably related to the nature of the offense, 

the characteristics of the defendant, or the need to deter, protect the public, or provide the defendant with rehabilitation. 

See 18 U.S.C. §§ 3583(d)(1), 3553(a); cf. Siegel, 2014 WL 

2210762 at *7 (holding that a district court that did not give 

reasons for a condition it was imposing committed harmless 

error if “[t]he consistency of that condition with the statutory 

sentencing factors is plain, given the nature of [the underlying] crime”). 

Accordingly, we vacate this condition of supervised release and remand for further consideration consistent with 

this opinion. 

D. Special Condition 5 (The Self-Employment Ban)

There is additional statutory authority that applies in the 

case of the self-employment ban. The statutory provision 

providing a partial list of discretionary conditions, 18 U.S.C. 

§ 3563(b)(5), states that a defendant can be ordered to “re-
No. 13-3373 11

frain . . . from engaging in a specified occupation, business, 

or profession bearing a reasonably direct relationship to the 

conduct constituting the offense, or to engage in such a specified occupation, business, or profession only to a stated degree or under stated circumstances.” The sentencing guidelines implementing this condition provide that 

“[o]ccupational restrictions may be imposed as a condition 

of supervised release,” U.S.S.G. § 5D1.3(e)(4), and that such a 

restriction may be imposed by a court 

only if it determines that: 

(1) a reasonably direct relationship existed between the defendant’s occupation, business, or profession and the 

conduct relevant to the offense of conviction; and 

(2) imposition of such a restriction is 

reasonably necessary to protect the public because there is reason to believe 

that, absent such restriction, the defendant will continue to engage in unlawful 

conduct similar to that for which the defendant was convicted.

U.S.S.G. § 5F1.5(a). In other words, the statutory provision 

and sentencing guidelines make clear that an occupation restriction requires a nexus between the underlying offense of 

conviction and the occupational ban. All three clauses are 

consistent in requiring the connection between the conduct 

constituting the offense and the occupation being restricted.

The district court gave some brief explanation for the 

self-employment ban, first raising its own concern about 
12 No. 13-3373

Farmer’s spotty employment and tax payment history, and 

then adopting the government’s suggestion of a selfemployment ban, raised for the first time at the hearing. See

Transcript of Plea and Sentencing and Competency Hearing, 

United States v. Farmer, No. 4:12-cr-00026 (S.D. Ind. Nov. 14, 

2013), ECF No. 84, 54–55 (discussing Farmer’s selfemployment over the past ten years), 57–59 (discussing with 

the parties, then imposing, a prohibition on selfemployment, on the basis that Farmer “hasn’t paid anything 

into Social Security other than $1,200” and that the requirement that he “start working and get[] a paycheck and pay[] 

taxes and become a good citizen” may rid Farmer of “that 

temptation to con people”). However, the district court’s explanation did not provide the necessary nexus between 

Farmer’s underlying crime—attempted extortion—and the 

self-employment ban. The district court did not determine

that Farmer’s activities as a self-employed entrepreneur 

caused him to attempt to extort Walter Allen. The court’s 

explanation focused instead on its belief that Farmer’s lack 

of success as an entrepreneur was causing him to turn to con 

activities to fund himself: perhaps not an incorrect conjecture, but one that is insufficient to meet the requirement that 

the occupation being restricted or banned “bear a reasonably 

direct relationship” to the “conduct relevant to the offense of 

conviction.” U.S.S.G. § 5F.15(a); cf. United States v. Wittig, 528 

F.3d 1280, 1288 (10th Cir. 2008) (reasoning, on the basis of 

the relevant statute and guidelines, that a court that did not 

explain how the occupational restriction related to the offense of conviction had erred, and that “[t]he mere fact [Defendant] engaged in such conduct while employed as an executive does not establish the necessary connection between 

the conduct and his management/executive positions”). The 
No. 13-3373 13

court also noted Farmer’s spotty tax payment history, stating: “He hasn’t paid anything into Social Security other than 

$1,200. He’s 48 years old. He’s going to have nothing paid in 

as he becomes a senior citizen.” But Farmer’s offense of conviction is extortion rather than a tax offense. Farmer’s age 

and status with regard to Social Security seem irrelevant to 

whether there was a “reasonably direct relationship” between his extortionate activities and his self-employment.

Because the district court’s explanation did not satisfy the 

requirements of 18 U.S.C. § 3583(d) and U.S.S.G. 

§§ 5D1.3(e)(4), 5F1.5(a), we also vacate this special condition 

and remand for further consideration.

III

We VACATE special conditions 4 and 5 of Farmer’s terms 

of supervised release and REMAND for further proceedings 

consistent with this opinion.