### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 13

- 3373

U NITED S TATES OF A MERICA , Plaintiff

- Appell ee ,

v.

W ALBERT K EITH F ARMER , Defendant

- Appell ant

.

____________________ Appeal from the United States District Court for the So u thern District of Indiana
, New Albany Division. No. 4:12

- cr

- 00026

- TWP

- MGN

- 1

— Tanya Walton Pratt
, Judge

.

____________________

A RGUED M AY 28, 2014

— D ECIDED J UNE 23, 2014

____________________

Before F LAUM , M ANION , and T INDER , Circuit Judges

. T INDER , 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 proh ibiting him from self

- employment, and the other requi ring him to submit to the search of his person, vehicle, office, residence, and property at the request of his probation o fficer, even without a warrant or reasonable suspicion. B ecause we conclude that the special conditions do not bear a2 No. 13

- 3373

reasonably direct relationship to Farmer’s underlying crimes, we vacate the special conditions in question and r emand for further consideration.

I In 2012, Farmer received information from a golfing and gambling compani on 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 Ta ylor,” contacted Allen via cellular phone fro m 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 co llect 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 ult imately petitioned to plead guil ty 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 a cceptance of the plea and sentencing. A presentence invest igation report (“PSR”) was prepared prior to the hearing, and detailed Farmer’s background and criminal history. The r eport stated in general terms that Farmer had been self

employed since 2002 and had sold sports schedules and r elated marketing products. How financially successful Farmer was at this endeavor was unclear: he reported ear ning approximately $500

- $700 a month, but had reported onlyNo. 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 convi ction for using interstate communications to transmit exto rtionate threats, three convictions for obtaining property by false pretenses (apparently filed by disgr untled 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 i nformation 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 sup ervised release, recommended by the probation se rvice and adopted by the court, including the requirement that
The defendant shall submit to the search, with the assistance of other law enforcement as ne cessary, of his person, vehicle, office, business,

an d residence, and property, including co mputer systems and peripheral devices. The d efendant shall submit to the seizure of any co ntraband found and shall warn other occupants that the premises may be subject to searches. After enumerating the initial set o f 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 se ntence should not be imposed as stated? Government?” Th e4 No. 13

- 3373

Government then raised two additional suggested cond itions 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 (app arently 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 entr epreneur 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 condition s 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 r esponded in the negative. Farmer filed a timely appea l.

II

A. Supervised Release Conditions Generally “Apart from a handful of conditions required by the Se ntencing 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 guid elines, U.S.S.G. § 5D1.3(c); and still others are “special cond itions” that are imposed for particular offe nses. § 5D1.3(d)

– (e). Id. While the sentencing guidelines list some conditions that are recommended for particular offenses, the list is “notNo. 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 ove rall federal sentencing policy as stated in 18 U.S.C. § 3553(a), especially subsection (a)(2), which requires the judge to co nsider ‘the need for the sentence imposed

– (A) to reflect the
serious ness 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 pr ovide the defendant wit h 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 se ction 3553(a), for every discretion ary part of the sentence that the judge is imposing, including any non

- mandatory cond itions 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 b riefly pause to express our concern that the parties were not privy to the conditions of supervised release su ggested by the probation office prior to the hearing. “Al though the probation officer who prepares the [PSR] also prepares a separate document ent itled ‘Sentencing Reco mmendation,’ which includes recommended conditions of s upervised 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 cond i-6 No. 13

- 3373

tions announced by the district court, was designated as co nfidential under the Southern District of Indiana’s Local Criminal Rule 13.1(c) (“The sen tencing recommendation provided to the court by the probation office will not be di sclosed 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
3 2(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 superviso ry context.” Bryant , 2014 WL 2612349, at *1 (quo ting United States v. Peterson , 711 F.3d 770, 776 and n.2 (7th Cir. 2013)). However, the Rule requires that “ [f]actual info rmation 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 defen dant to mount an effective challenge to it.” Id. at *2. Certainly, “[d]efendant and lawyer are charged with k nowledge of the sentencing guidelines, which list the standard conditions along with a number of special ones,” but it is almost impo ssible “to prepare to respond to every possible condition of supervised release that the judge may impose without any advan ce notice, given that the judge is empowered to i mpose 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 obje ctions to special conditions if he does not properly confront conditions presented for the first time at the sentencing hea ring. For this reason and others, we recommend that senten cing judges follow the best practices outlined in Siegel whenNo. 13

- 3373 7

imposing conditions of supervised release, p articularly the suggestion that judges “[r]equire the probation service to communicate its recommendations for conditions of supe rvised release to defense counsel at least two weeks before the sentencing hearing.” Siegel
, 2014 WL 2210762 , at *11.

C. Special C ondition 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. T he Government argues that because Farmer did n ot raise an o bjection despite the district c ourt’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 10 01, 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 w as 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 whe ther there was “anything else”

— a query that came after the statement that the court was imposing sente nce

— cannot constitute waiver.
Even so, there is some question as to whether the obje ction to the search condition was forfeited because of Farmer’s silence at the hearing and shou ld be reviewed for8 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. (A s 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 ci rcumstances.” 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 “judici al 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 5 11, 522

– 23 (7th Cir. 2013) (noting the conflict between cases like United States v. Bar tlett , 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

- erro r review .

. . or review for abuse of discretion . . . applies in these circu mstances, since we find that the special conditions must be v acated under either standard”).

As in Shannon and Goodwin , we leave for another day the decision on the proper standa rd 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

st andard condition suggested by the Probation Service of the Southern District of Indiana, claiming to have found it i mposed 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 conduc ting 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 guidel ines authorize for the purpose of monitoring sex offenders: the latter provision requires reasonable suspicion that the d efendant 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) (a uthorizing a court to order, as an explicit condition of supe rvised release, that a person and his property submit to search “by any law enforcemen t or probation officer with reasonable suspicion concerning a violation of a condition of s upervised release or unlawful conduct by the person ”) (emphasis added); U.S.S.G. § 5D1.3(d)(7)(C) (recommending as a sp ecial 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 susp icion concerning a violation of a condition of supervised release or unlawful conduct by the defendant ”) (emphasis adde d).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 nece ssary to furthering the deterrence, public protection, and r ehabilitativ e 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 o ffenses. “Although we stop short of stating that such r estrictions could never be appropriat e in these circumstances, our skepticism leads us to conclude that the district court must provide some justification for these particular cond itions.” Id. The error here is not harmless, because the co nsistency of this condition with the statutory sentenc ing fa ctors 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, pr otect the public, or provide the defendant with rehabilit ation. See 18 U.S.C. §§ 3583(d)(1), 3553(a); c f. 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 underl ying] crime”). Accordingly, we vacate this condition of supervised r elease 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

- emplo yment 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 “r e-No. 13

- 3373 11

frain . . . from engaging in a specif i ed occupation, business, or profession bearing a reasonably direct relationship to the conduct constituting the offense, or to engage in such a spe cified occupation, business, or profession only to a stated d egree or under stated circumstances.” The sentencing guid elines 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 e xisted between the defendant’s occup ation, business, or profession and the conduct relevant to the offense of co nviction; and (2) imposition of such a restriction is reasonably necessary to protect the pu blic because there is reason to believe that, absent such restriction, the defen dant will continue to engage in unlawful conduct similar to that for which the d efendant was convicted. U.S.S.G. § 5F1.5(a). In other words, the statutory provision and sentencing guidelines make clear that an occupation r estriction 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 fo r the self

- employment ban, first raising its own concern about12 No. 13

- 3373

Farmer’s spotty employment and tax payment history, and then adopting the government’s suggestion of a self

employment 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 self

employment over the past ten years), 57

– 59 (discussing with the parties, then imposing, a prohibition on se lf

employment, on the basis that Farmer “hasn’t paid anything into Social Security other than $1,200” and that the requir ement that he “start working and get[] a paycheck and pay[] taxes and become a good citizen” may rid Farmer of “that temptation to con p eople”). However, the district court’s e xplanation 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 entr epreneur 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 conje cture, bu t 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 128 0, 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 o ffense of conviction had erred, and that “[t]he mere fact [D efendant] engaged in su ch conduct while employed as an e xecutive does not establish the necessary connection between the conduct and his management/executive positions”). TheNo. 13

- 3373 13

court also noted Farmer’s spotty tax payment history, sta ting: “He hasn’t paid anything into Social Secu rity 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 co nviction is extort ion 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” b etween his extortionate activities and his self

- employment. Because the district court’s explanation did not satisfy the requirements of 1 8 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 V ACATE special conditions 4 and 5 of Farmer’s terms of supervised release and R EMAND for further pr o ceedings consistent with this opinion.