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 successfully 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 Supervision” and five additional “Special Conditions.” Raney subsequently agreed to four additional Special Conditions, for a total

oftwenty-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 probation 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 violationsof 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 scrupulously to the conditions imposed. 

In January 2014, Raney was againassigned 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

At Raney’s revocation hearing, the government failed to present any

1

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 ofSeptember

6, 2014. At the time Mr. Raney was interviewed 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 weekend of September 6, 2014. This was not a true

statement. On the monthly supervision report 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 estimated they see each other every other weekend. 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 numbers 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 handsfree 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. Although Raney began dating Jackie in

2

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 polygraph 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

Each monthly report was filed shortly after the end of the reporting

2

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 sometimes accompanied them on outings. He toldMcDonald 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. Dan testified 3

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

 Dan and Timmy Reichling are both cousins of Raney. Although Timmy

3

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 specifically 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 supervising probation officer was not made aware

that this other adult and two minors accompanied 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 probation officer and by lying to a polygraph examiner; (3) whether

the court erred by failing to consider relevant section 3553(a)

factors when it sentenced Raney to nine months’ imprison- 4

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 admission 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

 See 18 U.S.C. § 3553(a). 4
12 No. 14-3265

18 U.S.C. § 3583(e)(2) motion without the risk of longer

imprisonment posed by a full resentencing hearing.” How- 5

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.

 See United States v. Thompson, 777 F.3d 368 (7th Cir. 2015).

5

Although Raney has served his sentence of imprisonment, he remains on

6

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 Amendment 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

howtoproceed.” 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 examiner’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 erroris 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 hearing, the court can also find no comfort in his
No. 14-3265 15

recent statements to a polygrapher. On September 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 evidence 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. There is therefore no plain error. 

7

B.

Raney’s August monthly report to his probation officer was received in

7

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 information 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 permission for the zoo trip. Standard Condition 3, he asserts, “only

prohibits affirmativemisinformationinresponse 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 supervised 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, twentyfour 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 condition 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 release.

R. 25, at 5. 

The government concedes that, when there is an inconsistency 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 characteristics; (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 imposing 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 twentyfour 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 supervised 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 twentyfour 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 unjustified, 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 considerable 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.