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# United States Court of Appeals For the Seventh Circuit

No. 14-3265

U NI T E D S TAT E SOF A M E RI CA , Plaintiff-Appellee,

v.

K E NN E TH RAN E Y

, Defen dant-Appellant.
Appe al f ro m the Uni ted S tates Distri ct Co urt fo r the

Western Di stric t o f Wi sconsi n. No. 3: 12 -cv-00 10 0- wmc-1 — Will ia m M. Conle y, Chief Judg e.

A RGU E D M A

Y 21, 2015

— D E C I D E D A UGUS T 12, 2015

Before W OOD, Chief Judge, and R OVN E R , and W I L L I AM S

, Circ uit Judges. R OVN E R , Cir cui t Judge. Kenneth Raney w as convic ted of interstat e tr av el wi th intent to enga g e in a sexual act wi th a minor , in violati on of 18 U.S

. C

. § 2 423(b) , and atte mpt to manuf acture chi ld porno gr aphy , in v io l a t i on of 18 U.S.C. § 2 251(a). He w as sentenced to 145 months’ i mpri sonment, fo l low ed by three y ears of supervis ed release. After suc ces sfully serving the ter m of i mpri sonment, Raney faltered during2 No. 14-3265
the period of superv ise d release, ski rmi shing wi th three di fferent pr o bati on offi cers. The di stric t court ulti mately
rev oke d hi s supervis ed release and returned hi m to pris on. He appeals from the or der rev oking hi s superv i sed release. W e
a ffirm the court’s rev ocation of supervis ed release but w e
v acate and remand for r esentencing. A. At the tim e of hi s init ia l sentencing, the di stric t court i mposed on Raney thi rt een “St andard Condi tions of Superv i

si on” and fiv e addi tional “Speci al Condi tions .” Raney sub sequ e ntly a gr eed to four addi tional Speci al Condi tions, for a tota l of twe nty

- two. Shor tly after hi s release from pris on in Februar y 2012, Rane y’s probat i on offi cer repo rt ed to the court that Raney violated tw o of the condi tions of hi s supervis i on. In May 2012, the offi cer repo rt ed that Raney had fai led to repo rt to the prob ation offi ce wi thin sev enty-tw o hours of hi s release, and that he had associ ated wi th a felon, Ti mmy Reichling, wi thout the permi ssi on of hi s probat i on offi cer
. Th e co urt too k no acti on on these violati ons becau se Raney w as other wi se compli ant and w as sho r t l y tr ansferr ing out of the Nort hern Di stric t of Illinoi s to the W estern Di stric t of W i scons in. Raney

w as admoni shed not to associ ate wi th the felon (wh o w as also Raney’s cousin) wi thout seeking the permi ssi on of hi s pr obation offi cer
. A new pr o bati on offi cer too k ov er Raney’s supervis i on in Wi scons in in July 2012. In Sept ember 2012, the new probat i on offi cer fi led tw o petiti ons for w arr ants allegin g viola ti on s of the St andard and Speci al Condi tions of supervis i on. In particu lar , th e offi cer alleged that Raney w as again in uns upervisedNo. 14-3265 3

contact wi th hi s cousin, and that he w as found in possess i on of

a memory sti ck wi thout prior approv al fro m hi s probat i on offi cer
. After a hearin g, the di stric t court deci ded not to rev oke Raney’s supervis ed release but w arned hi m to adhere scrupu lously to t he condi tionsi mposed. In January 2014, Raney w as again assi gned a new probat i on offi cer , Kr i stin Kiel. In April o f t ha t y ear , Kiel requested a modi fi cati on to the condi tions of supervis ed release, requiring Raney to sub mi t to electro ni c moni tor ing for 120 days becau se
a polyg raph examine r had deter mined that Raney w as not tr uthful in answering tw o questi ons during a polyg raph test. Raney consented to the m oni tor ing an d the court accordingly modi fi ed the condi tions

. Agains t thi s backdrop of Raney’s repeat ed i ssu es with supervis ed release, in Sept ember 2014, Kiel fi led another petiti on for a w arr ant, thi s tim e allegin g that Raney ha d violated St andard Condi tion 3, and that he had fai led to make agr eed payments tow ards the co st of hi s electro ni c moni tor ing. 1 St andard Condi tion 3 prov i ded tha t “ t he defendant shall
answer tr uthfully all inqui ries by the probat i on offi cer and follow the instruct io ns of the probat i on offi cer[.]” R. 2-4, at 3. According to Kiel’spetiti on, On May 31, 2014, Kenneth Raney w a s gr anted permi ssi on to tr av el outsi de the W estern Di stric t of Wi scons in to vis i t the

At Raney’s revocatio n hearing, the government fail ed to p r e se nt any 1 evidence regardi ng Raney’s fail ure to pay the cost of el ectro nic moni tor i ng. The co urt theref or e tre ated that pa rt o f the p eti tio n as withdrawn.4 No. 14-3265
Milwaukee County Zoo wi th hi s cousin, Dan, and Dan’s girlfri end, Cindy

. Although Mr

. Raney spec ifi cally informed thi s offi cer that only he, Dan and Cindy w ould be g oin g on the tr i p, a Jacki e Haus er and her tw o minor sons als o w ent wi th them. On Sept ember 10, 2014, dur ing the pre-test phase of a s e x offe nder polyg raph ev aluati on, Kenneth Raney told the polyg rapher that hi s U.S. probat i on o ff icer w as aw are of a sexual relat i onshi p he had wi th “Jacki e,” and sai d that hi s U.S. probat i on offi cer w as aw are that he went cam p ing wi th “Jacki e” and her tw o minor sons during the weekend of Se p te mb er 6, 2014. At the tim e Mr

. Raney w as inter

viewed by the polyg rapher, thi s offi cer w as not aw are of M r
. Raney’s relat i onshi p wi th Jacki e or of the camping tr i p. R. 16, at 1

. After recounting Raney’s past problems wi th supervis i on, the pet i tion c ontinu ed: During the pre-test p hase of a sex offender polyg raph on Sept ember 10, 2014, Mr

. Raney indi cated that thi s offi cer [Ki el] w as aw are of his girlfri end “Jacki e,” the fact that she has tw o y oung sons, and the fact t hat they went camping in hi s recreat i onal v ehi cle the weekend of Sept ember 6, 2014. Thi s w as not a tr ue statement. On the monthly supervis i on report form for sex offenders sub mi tte d by Mr

.No. 14-3265 5 Raney on Sept ember 9, 2014, for the month of A ug us t, he indi cated that he w as seeing “Jacki e Haus er” and noted that she had sons ages 10 and 12. On Sept ember 11 , 2 0 1 4 , thi s of fi cer received a tex t mess age from Mr

. Raney indi cating, “W

oman i m seeing, Jacki e, phone numb er i s xxx -xxx -xxx x.” M r
. Raney fi rst to l d his sex offender therapist about “Jackie” o n Sept ember 19, 2014. Thi s offi cer conduc ted a telephone interv i ew wi th Jacki e Houser [si c] on Sept ember 16, 2014. M s. Houser [si c] stated that she had been datin g Mr

. Raney since June 2014. She stated that she and her so ns went to the zoo wi th Mr

. Raney early in their relat i onshi p. She esti

mated they see each other ev ery other weekend. She stated she and her tw o y oungest chi ldren, s ons ages 12 and 10, went c amping wi th Mr

. Raney in hi s camper the weekend of Sept ember 6, 2014. R. 16, at 2. At the rev ocation hearin g, the Uni ted St ates presented testim ony from Kiel and from Su sa n McDonald, Raney’s therapist. Kiel testifi ed that on May 31, 2014 at 4:23 p.m., Raney sent her a tex t message: Dan and cindy are thinking of going to zoo in mi lw aukee. They asked me to go i f they do. T old them ild ask u. s o isi t ok6 No. 14-3265
R. 24-3. St a nd a rd Condi tion 1 required Raney to ask for permi ssi on for thi s tr i p becau se Milwaukee i s outsi de the W estern Di stric t of W isc onsin, where Raney w as serving hi s supervis ed release. R. 2-4, at 3 (“the defendant sh all not leav e the judi ci al di stric t wi thout the permi ssi on of the court or probat i on offi cer”). Kiel tex ted in response, “Who i s driving?” Raney responded, “Dan, cindy i s in wheelchai r .” Kiel replied, “I need Dans phone numb er please. Then tex t when y ou leav e and when y ou retur n p lease.” R. 24-3. Raney prov i ded numbers for Dan and Cindy

. Kiel testifi ed that the next mornin g at 7:09 a.m., Raney sent her a tex t mess age statin g, “W e are going to z o o no w .” Kiel then called Dan, who w as, at that v ery moment, driving to the
zoo. Unbeknownst to Kiel, Dan w as talking to her on a hands

free speaker phone, in a conv ersation that could be heard by all of the occupants of the car
. Also unbeknowns t to Kiel, those occupan ts inclu ded not only Dan, C indy and R aney, but also Cindy’s cousin Jacki e Haus er and Jacki e’s tw o sons, aged te n and tw elv e. Kiel w as concerned about Raney going to a zoo, a p lace where he w as li kely to hav e contact wi th chi ldren a nd she asked Dan to “act as a thi rd-part y cus todian of sort s” to
ensure that Raney w as not alone wi th chi ldren at any tim e. She asked hi m to accompany Raney to the bathroo m at the zoo and to ensure that he was not a l one wi th chi ldren. Wi th Dan’s
assen t, she approved the tr i p. Kiel testifi ed that she w ould not hav e allow ed Raney to go on the zoo tr i p wi th chi ldr e n. Kiel di d not learn that Raney w as datin g Jacki e unti l she received a tex t fr om Raney on Sept ember 11, 2014, sev eral months after the zoo tr i p, informing he r of the relat i onshi p and pass ing along Jacki e’s phone number

.No. 14-3265 7
When Kiel sub sequently called Jacki e, she learn e d t hat Jacki e had been datin g Raney since approx i mately June 14, th a t Jacki e and her sons had gone to the zoo wi th Raney early in the relat i onshi p, and that Jacki e and her sons had gone camping wi th Raney in his camper o n September 6. According to Kiel, Jacki e equiv ocated when asked i f her sons had been left alone wi th Raney during any part of the camping tr i p, at fi rst saying that i t w as possi

ble but then statin g that she nev er left her sons alone wi th Raney, and that she too k them to the bathroo m wi th her consi stently thro ug ho ut t he tr i p. Giv en the ages of the boys, Kiel di d not believ e thi s clai m. During K i el’s t esti mony , the government admi tt e d into evidenc e, wi thout objection, Raney’s monthly written supervis i on repo rt s t o Kiel for May , June, July and August. Although Raney began datin g Jacki e in 2 June, he denied being in an inti mate relat i onshi p on the May , Ju ne and July repo rt s. He admi tte d the relat i onshi p and the contacts wi th Jacki e’s chi ldren only in the A ugust repo rt, sh o r t l y before he was sch eduled to sub mi t to another poly

gr aph examinati on. Susan M cD o na l d testifi ed that Raney w as refer red to her for therapy by the Uni ted St ates Probation and Pretr i al Offi ce. McDonald fi rst learned of Raney’s relat i onshi p wi th Jacki e Haus er in a sess i on on Sept ember 19, 2014. At that tim e, Raney
rev ealed that he had a new g i rlfriend whom he met thro ugh hi s cousin in April 2014. Raney told her that Jacki e w as datin g
someone else when they fi rst met and that he fi rst a sk e d her

Each monthly repo rt was fi l ed shortl y after the end of the repo rti ng 2 month. For exa mple , the repo rt coveri ng Raney’s conduc t i n May was fi l ed i n June, and the A ugust repo rt was fi l ed i n Septe mb er.8 No. 14-3265

out on June 1, when they went to the zoo wi th her sons. By A ug us t, they were datin g reg ularly and Jacki e’s sons sometim es accompani ed them on ou tin gs
. H e to l d McDonald that he planned to go camping wi th Jacki e and her sons the next day (September 20) and that they had prev i ously take n a camping tr i p. In hi s defense, Raney called Dan Reichling, the cousin who accompani ed hi m to the zoo, and Jacki e Haus er. Dan testifi ed 3 that he and hi s fi anceé, Cindy , planned to go to the Milwaukee
zoo. He invited Raney to ac company them. On the w ay there , they pi cked up Cindy’s cousin, Jackie. Dan asked Raney i f he had spoken to hi s probat i on offi cer about the tr i p and Raney said he had. After the gr oup pi cked up Jacki e and her sons, Kiel called and Dan too k the call on hi s car’s speak e r phone. Kiel as ked what w as goin g on and Dan told her t hey w ere o n their w ay to the zoo. According to Dan, Kiel then told hi m not to let Raney go to the bathroo m by hi mself

. Dan understood from hi s knowledge o f R a ne y’s convic tion that Raney could ha ve only supervis ed contact wi th chi ldren. Dan di d no t menti on to Kiel the presence of J acki e or the chi ldren b ecaus e he beli ev ed t hat Raney had already told hi s probat i on offi cer about them. Raney r emained si lent durin g the call. Jacki e Haus er tes t i fi ed that she met Raney thro ugh her cousin on May 3, 2014 and began datin g hi m in August of that y ear
. Although she saw hi m a few tim es at ev ents wi th her cousin betw een May and August, she w as datin g someone else

Dan and Ti mmy Rei chli ng are b oth co usins o f Raney. Al though Ti mmy 3 i s a convicte d fel on with whom Raney coul d not ass oci ate witho ut supervisi on, the reco rd r evea l s no si mil ar conce rn with Dan.No. 14-3265 9

a t that tim e. She acknowledged going to the zoo on June 1 st wi th Dan, Cindy

, Raney and her sons, at the invita t io n of Cindy

. She deni ed havin g an inti mate relat i onshi p wi th Raney unti l August 2014, and admi tt ed going camping wi th Raney
a nd her sons on Sept ember 6 and Sept ember 20, 2014, in Raney’s camper

. Fr om thi s evidenc e, the government arg ued that Raney violated St andard Conditi on 3 wi th a “li e by omis si on” when he asked for per mi ssi on to go t o the zo o but fai led to dis close that Jackie Hauser and her sons w ould be present on the t rip, instead tellin g the probat i on offi cer that he w as going wi th Dan and Cindy

. The gov ernment also noted that Raney w as in the
car wi th Jacki e and her chi ldren when hi s probat i on offi cer w as advis ing Dan not to a l l o w R aney to go to the bathroo m by hi mself , indi cating that thi s w as an “obvious li e by omi ssi on.” When Raney’s couns el countered that the government had not met i ts bu r den of proo f, the court stated that Raney fai led to comply wi th hi s repo rt ing obli gations becau se he ha d filed repo rt s wi th hi s probat i on offi cer in Ma y , Ju ne, July and August denying that he had gone to any l o cati on where he viewed, w as near to, or spoke to any one who a p p eared to be under the age of ei ghteen, when he in fact had gone to the zoo wi th chi ldren and had gone camping wi th chi ldren. The court
no ted that Raney deliberately omi tte d information r egar ding hi s contacts wi th chi ldren and affi rm a tiv ely li ed about such contact in hi s monthly repo rt s. The court also noted that Raney “speci fi cally only refer red to hi s co us in and hi s cousin’s girlfri end and he knows he only has approv al for that contact.” R. 31, at 82. The court there fore r e voked Raney’s supervis ed10 No. 14-3265
release and sentenced hi m to nine months’ i mpri sonment and tw enty-four months of s upervised release. In a sub sequent wri tte n or der , the court i ssu ed findings of fact: Mr

. Raney w as gr a nt e d permi ssi on to tr av el outsi de the W

estern Di stric t of Wi scons in to vis i t the M i lw aukee County Zoo on May 31, 2013, [si c] wi th hi s cousin and hi s cousin’s girlfri end. Although the defendant speci fi

cally informed Probation Offi cer Kr i s Kiel that only his cousin, hi s cousin’s girlfri end and he w o ul d be going to the zoo, another adult female a nd he r tw o minor sons went wi th them as well. The defendant’s supervis

ing probat i on offi cer w as not made aw are that thi s o ther adul t and t w o minors accompani ed the gr oup to the zoo unti l almost four months later

. R. 25, at 2-3. The court found the fai lure to di scl ose particu larly egr egious becau se Raney w as in the car a nd able to hear the phone call betw een Kiel and Dan and y et di d nothin g to corr ect the mi simpressi on, only to deny any contact wi th chi ldren in
a wri tte n repo rt fi led tw o days later

. The court conclu ded that Raney’s intent to decei v e w as confi rmed by t he testim ony of hi s own wi tnesses, who admi tte d that Raney had engaged in repeat ed unauthorized contacts wi th chi ldren whi le a t the same ti me denying these contacts in hi s wri tte n repor ts to his probat i on offi cer
. The court also i mpose d a new Speci al Condi tion 10 for Raney’s supervis ed release, requiring hi m toNo. 14-3265 11
sell hi s recreat i onal v ehi cle, whi ch we wi ll di scu ss below

. Raney appeals. II. Raney or i g inally presented four i ssu es for appeal: (1) whether the court’s consi derat i on of polyg r a p h evidenc e violated hi s confro ntation r i ghts under the Fifth Amendment and F ed. R. Crim. P

. 32.1(b) (2)( C); (2) whether the court err ed when i t found that Raney violated St andard Condi tion 3 of hi s supervis ed release by not di scl osing information to hi s probation offi cer and by lyin g to a polyg raph examiner; (3) whether t he co urt err ed by fai ling to consi der relev ant secti on 3553 (a ) factors when i t sentenced Raney to nine months’ i mpri son-

4 ment, tw enty-four months of supervis ed release, and i mposed

a new condi tion of supervis ed release requiring hi m to sell hi s R V camper; and (4) whether the ban on Raney’s use of a mobi le home (S p eci al Condi tion 10) i s null becau se i t w as not or ally prono unc ed as par t of hi s sen tence. At or al arg ument for thi s appeal, Raney’s lawyer informed the court that Raney had already completed the nine months of i mpri sonment or dered by the di stric t court, and that hi s cli ent mi ght wi sh to wi thdraw cert a in arg uments as a result. Counsel sub sequently fi led a lette r wi th the co ur t wi thdrawing hi s challenge to the admi ssi on of the polyg raph evidenc e, noting that “a new rev ocation hearin g wi ll no t p ro vide any effecti v e relief giv en that Mr

. Raney has serv ed hi s i mpri sonment.” Raney also wi thdrew “hi s Thompson challen ge (i ssu e III ),” noting that he “can c ontest i mproper supervis ed release condi tions in the tr i al court via an

See18 U. S.C. § 35 53 (a). 412 No. 14-3265
18 U.S.C. § 3583(e)( 2) motion wi thout the ris k of longer i mpri sonment posed by a full resentencing hearin g.” How- 5

ev er , Raney “continu e[d] to assert that a forced sale of hi s R V violates hi s Due Process rights.” He there fore sought a li mi ted

r e ma nd on the R

V i ssu e i f thi s court were to uphold his
rev ocation. Becaus e Raney continued to challen ge the v ali di ty of hi s rev ocation whi le at the same tim e professing a desi re to
av oid a new rev ocation hearin g and the possi bi li ty of a longer ter m o f impri sonment, w e asked Raney to clari fy to the court whether he meant to challen ge t he rev ocation i tself or w as li mi tin g hi s appeal to the i ssu es relat ed to the forced sale of hi s R V . Hi s lawy er r esponded by wi thdrawing hi s wi thdraw al: Mr

. Raney ha s informed couns el that he wi shes to challen ge the rev oca t ion i tself. Accordingly

, he does not li mi t hi s appeal to the forced sale of the R

V

. He wi shes to ass ert all i ssu es rai sed in hi s bri efs. June 28, 2015 Rule 28(j) Lette r of Counsel. W e wi ll there fore address all of the i ssu es originally rais ed in Raney’s appeal. 6
A.

See United Sta tes v. Tho mp son , 7 77F.3 d 3 68 (7 th Ci r. 2 01 5)

. 5

Al though Raney has served his sentence of i mpri sonment, he remains on 6 supervised rel ease, and therefo re his appeal i s not moo t. United S t a t es v
. LaShay, 41 7 F.3d 71 5, 7 1 6 n.1 (7 th Ci r. 20 05 ) (when a def endant has compl etel y served a te rm of i mpri sonment, the appeal i s not mo o t wher e he i s sti l l se r v i ng a term of supervised rel ease b ecause on remand, the di stric t co urt co uld sti l l alter the o v erall sentence).No. 14-3265 13
Rane y f i rs t a rg ues that the court’s consi derat i on of evi d e n c e fr o m a non-testi fying polyg raph admini strat or violated hi s right to confront an adv erse witness under the Fifth Amendment and under F e d e ral Rule of Criminal Procedure 32.1(b) (2)( C). At the rev ocation hearin g, the gover nm ent intro duced into evidenc e tw o polyg raph repo rt s, dat ed April 10, 2014 and Sept ember 12, 2014. The re vo ca t ion petiti on alleged that Raney falsely told the polyg raph examiner for the Sept ember test that he had informed hi s probat i on offi cer about hi s relat i onshi p wi th Jacki e Haus er, and that the offi cer
w as aware that he had gone camping wi th Haus er and her tw o chi ldren on Sept ember 6. At the government’s offer of the fi rst repo rtinto ev i dence, Raney’s c ounsel tookexception, stating, “I object on Ru le 702 gr ounds. No foundati on that’ s reli able.” The court asked for clari fi cati on, saying, “Y ou’re objecting becau se of i ts lack of exper tis e?” Counsel replied, “It has polyg raph results in i t.” The court then admi tte d the r epor t subject to that objection, statin g thati t did not intend to “re ly
on the sci ence of i t,” bu t only “rely on i t as information that thi s probat i on offi cer had before her in making deci si ons about h ow to p roceed.” When the government intro duced the s e c on d polyg raph repo rt, the court stated that i t w ould be admi tte d on the same gr ounds as the fi rst, “subject to the 702 li mi tation, unles s, Counsel, y ou wi sh to add any other objection.” Raney’s
couns el replied, “No. That’s fine, Judge.” R. 31, at 28-29 and 41. As is cl e a r from thi s ex change, R aney di d not rais e a Fifth Amendment or Rule 32.1 objection to the polyg raph examiner’s repo rt s at the hearin g. W e wi ll there fore rev i ew the di stric t court’s deci si on for plain err or
. United States v
. W ebster , 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 Ci r
. 2014). See also Un ited States v
. Blount, 502 F .3d 674, 677-78 (7th Ci r
. 2007) (notin g that an objection on one g r o und to the admi ssi on of evidenc e does not preserve other , unas serted gr ounds for appeal). In or der to rev erse fo r plain err or , we mus t find (1)
err or (2) that i s plain, and (3) that affec ts the defendant's sub stanti al rights. United States v
. Olano , 5 0 7 U .S. 725, 732 (1993); McLaughlin , 760 F .3d at 706. An err or i s plain i f i t i s clear

or obvious. Olano , 507 U.S. at 734; McLaughlin , 760 F .3d at 706. An err or affec ts the de fe ndant's sub stanti al rights when i t i s prej udi ci al, that i s, when i t has aff e ct e d the outcome of the di stric t court proceedings. Olano , 507 U.S. a t 7 3 4

. It appears from the re co rd that the court di d not rely in any manner on the April 10 repo rt and R a ne y d oes not assert any particu lar prej udi ce from the Apri l 10 repo rt

. W e there fore wi ll focus on the Se ptember 12 r epor t. Ev en i f w e assu me fo r the sake of ar gument that t he court plainly err ed in admi tting thi s evid e nce, we rej ect Raney’s challen ge becau se the evid e nce di d not affec t the outcome of the proceed ing s. First, the di stric t court expr essly li mi ted the
use of thi s evidenc e, indic a t ing that i t w ould not accept the sci ence of ei ther polyg raph exam but w ould rely on the repo rt s only to show what information the probat i on offi cer had

a v ai lable when making her deci si ons. Ultim ately , the di stric t court di d not menti on the polyg raph evidenc e in i ts or al ruling and menti oned the Sept ember 12 repo rt only in passing in i ts wri tte n order : Unli ke the October 4, 2013, rev ocation he aring, the courtcan als o find no comfort in hi sNo. 14-3265 15

recent statement s to a polyg rapher. On Sept e mb er 10, 2014, the defendant told the polyg rapher that his supervis ing probat i on offi cer w as aw are o f a sexual relations hi p he had wi th the mother of the tw o minor males and that the defendant had gon e camping wi th the mo ther and the tw o minor males during the weekend of Sept ember 6, 2014, when in fact the d e fe ndant’s supervis ing offi cer w as not aw are of the defendant’s
ro manti c relat i onshi p or of the camping tr i p. R. 25, at 3. In other w or ds, the court di d not wei gh thi s evide nc e a g ainst Raney, but rather commented that i t could not
use the polyg raph in Raney’s fav or , as i t had done a t a p r io r
rev ocation hearin g. Indeed, at no point in the or al o r wr it ten deci si on di d the court use Raney’s statements to the polyg raph examine r as evidenc e that he violated St andard Condi tion 3. Becaus e there i s no ind ica tion that the court wei ghed the p o l ygr aph evidenc e again st Raney, the admi ssi on of th is evid e nce di d not affec t the outcome of the di stric t court proceedings. There i s therefor e no plain err or
.

7
B.

Raney’s A ugust monthly re por t to his pr obation o ffi cer was rece i v ed i n 7 tha t of fi ce on Septe mb er 9; the pol ygraph exa m occ urred on Septe mb er 10 ; Raney texted his pro b atio n of fi cer regardi ng Hauser on Septe mb er 11 ; and the pol ygraph repo r t was i ssued on Septe mb er 12

. The cour t’s statem ent
was thus l i terall y true. Kiel had not yet seen Raney’s August monthly repo rt when Raney tol d the pol ygraph exa miner that Kiel was awa re of his rel atio nship wi th Haus er and hi s co nta ct wi th her chi l dren.16 No. 14-3265 Raney next asserts that the cour t er red when i t found that he violated St andard Condi tion 3 by fai ling to di scl ose inf or mati on to hi s probat i on offi cer and giving false information to
a polyg raph examiner
. Accordin g to Raney, the government fai led to prove that he li ed and in particu lar fai led to prove that he li ed in response to an inq uir y fr om hi s probat i on offi cer
. Instead, he contends, the government d e mo nstrated at most that he omi tte d certain information when he asked for permi ssi on for the zoo tr i p. St andard Condi tion 3, he asserts, “only prohibi ts affirm a tive m i s infor m a ti on in resp onse to a probat i on offi cer’s questi ons.” Defendant ’s Brief at 19. Mor eov er , the “baldest of li es to the polyg raph admini strat or could not be a violati on o f St andard Condi tion No. 3,” according to Raney, becau se the polyg raph adminis tr ator i s not hi s probat i on offi cer
. At a rev ocation hearin g, the government mus t prove by

a preponder ance of the evidenc e that the defendant violated a condi tion of supervis ed release. 18 U.S.C. § 3583(e)(3) ; United States v
. Pr

eacely, 702 F .3d 373, 375 (7th Ci r
. 2 0 1 2 ). I n gener al,

we rev i ew the rev ocation of supervis ed release for abu se of di screti on, and we rev i ew the di str ict co urt's factual findings supp or tin g that rev ocation for clear err or
. Preacely, 702 F .3d at 375. As we noted abov e, the court di d not rely on any li es to the polyg raph examiner in finding that Raney violated St andard Condi tion 3, and t hat arg ument t herefor e re quir es no further di scu ssi o n. Instead, the court found that the government proved at least tw o mi srepresentat i ons to the p ro bati on offi cer: fi rst, the government demonstrate d that Raney secu red permi ssi on t o leav e the di stric t and g o to the zoo by omi tting from hi s request the fact t hat Haus er and her tw o minor sonsNo. 14-3265 17

were also accompanying hi m on the tr i p. Second, Raney filed false supervis i on repo rt s to hi s probat i on offi cer in May , June, July a nd A ugust of 2014, denying that he had unrepor ted contact wi th minors when in fact he had gone t o the zo o wi th child ren and had other unrepor ted contacts wi th chi l d r e n. R. 31, at 79 (“And I’m look ing just atthe gov ernment exhibi ts and on – in June, July and August, I gu e ss May as well, he i s asked hav e y ou been at or gone to any location where y ou
v iew ed or near [si c] or spoke to any one who w as and/ o r appeared to be 18 y ears of ag e o r younger and y ou hav e not repo rt ed to y our offi cer and tr eatment prov i der , and each tim e he sai d no. He had been on repeat ed tr i ps in an R V wi th underage chi ldren. He’d gone to the zoo wi th underage chi ldren.”); R. 31, at 80 (“he’s been w arned twi ce by thi s court to make sure he’s in stric t compli ance and instead he’s havin g multi ple contacts wi th underage chi ldren and deliberately omi tting that infor mati on; in fac t, lyin g about i t inhi s repor ts
e ver y month.

... I don’t get what y ou think the government needed to prove bey ond that.”); R. 25, at 2-4 (notin g that Raney both omi tte d inf o r mati on in hi s request to tr av el outsi de the di stric t to the zoo and that he “affi rmativ ely deni ed in wri tin g” in hi s monthly supervis i on repo rt to hi s probat i on offi cer that he had un repo rt ed contact wi th chi ldren). Although Raney objecte d in hi s opening bri ef to the di stric t court’s use of a li e of omi ssio n to find a violati on of St andard Condi tion 3, he di d not object to the court’s finding that he affi rmatively lied in hi s monthly supervis i on repo rt s un til hi s reply bri ef, after the government pointed out thi s second basi s for the di strict co ur t’s holding that he violated St andard Condi tion 3. In hi s reply brief, Raney complain ed for the fi rst18 No. 14-3265
tim e that the rev ocation petition di d not allege that hi s monthly repo rt s were a violati on of St andard Condi tion 3, and that the lack of adv ance notic e for thi s violati on d e nie d him d u e p r o c e s s u n d e r t h e F i f t h A m e n d m e n t a n d Rule 32.1(b) (1)( B)(i ). Raney’s contention fai ls for a t l e ast tw o
reasons. First, Raney’s fai lure to attack in hi s opening bri ef the di stric t court ’s holding that he v i olated S tandard Co ndi tion 3 when he affi rmativ ely li ed in the monthly supervis i on repo rt s consti tut e s a w aiv er of thi s objection. United States v
. V allone, 698 F .3d 416, 448 (7th Cir

. 2 0 1 2), vacated on other grounds , 133 S. Ct. 2825 (2013) , reinstated in relevant part, 752 F .3d 690 (7th Ci r
. 2014) (having i gnor ed a par ticular rat i onale for the di stric t co urt's ruling in presentin g an i ssu e and making an ini tial argument o n appeal, a defendant w ai v ed thi s asp ect of hi s challenge); United States v

. Fuc hs , 6 35 F .3d 929, 933-34 (7th Ci r
. 2011) (fai lure to address di stric t court's alter nati v e holding
on an i ssu e w ai v es any challen ge to that holding); United States
v
. Al h al abi, 443 F .3d 605, 611 (7th Ci r
. 2006) (ar guments r ai sed for the fi rst tim e in reply bri efs are w ai v ed). In fact, Raney also fai led to object to the admi ssi on and use of those repo rt s at the

rev ocation hearin g i tself. See R. 31, at 37 (admi tting wi thout objection the monthly repo rt s for May , June, July and August). Second, Raney has not i denti fi ed any unfai r prej udi ce from the government’s use of the monthly supervis ion repo rt s. Recall that these were repo rt s that Raney hi mself sub mi tte d to hi s probat i on offi cer
. He could hardly be su r pris ed by the conte nt s of repo rt s that he authore d. See United States v
. Rodriguez , 803 F .2d 318, 321 (7th Ci r
. 1986) (wh ere the evidenc eNo. 14-3265 19
i s consi stent w i th the language of the indi ctment, a defendant
can hardly clai m unfai r s urpris e becau se the gov ernment was able to dis cov er hisown deed). Fin ally , Raney wrot e the repo rt s in response to wri tte n inqui ries from the proba t io n offi cer
. That fact evis cerates hi s arg ument t hat proo f of a violati on of St andard Condi tion 3 required a li e in r esponse to an inqui ry
. The pr obation o ffi cer , thro ugh the monthly rep o r ts, posed numerous inqui ries, includ ing t he key questi on here of whether Raney had “been at or gone to any location where you viewed, were near or spoke to, any one who w as and/or appeared to be 18 y ears of age or y ounger

, that y ou hav e not repo rt ed to y our offi cer and tr eatment prov i der?” During the month that Raney went to the
zoo wi th Jacki e Hause r’s chi ldren, he answered “no” to thi s que st i on. R. 24-5, at 3. Ev en i f we were to accept Rane y ’ s
co nt e nt ion that a li e of omi ssi on w as insu ffi ci ent to meet the language of St andard Condi tion 3, or that the li e mus t hav e been in response to a n inqui ry , thi s affi rmativ e deni al on the
mo nthly repo rt alone w as enough for the court to find a viol a t io n o f that Condi tion. There w as no clear err or in that factual finding and no abus e of di screti on in rev oking supervis ed release on that basi s. Preacely, 702 F .3d at 375. C. Raney next asserts that the di stric t court err e d wh en i t fai led to consi der the relev ant sectio n 3 5 5 3(a) factors when i t i mposed a sentence of nine months’ i mpri sonment, tw e nt yfour months of supervis ed release and certain di screti onary condi tions of supervis ed release. He also contends t ha t the court er red in tw o w ays in i mposing a n ew Speci al Condi tion20 No. 14-3265
10. First, he arg ues that the court abus ed i ts di screti on in
or dering hi m to sell hi s R V wi thout giving hi m prior n otice of thi s condi tion and an oppor tuni ty to object. Second, he complains that the court’s or al prono unc ement of thi s condi

tion w as more narro w than the wri tte n or der , and that the or al prono unc ement mus t contro l. Our rev i ew of a se nt e nce i mposed in a rev ocation proceeding is highly deferential. United States v
. Boultinghouse, 784 F .3d 1163, 1177 (7 t h C i r
. 2015). W e hav e li kened i t to “‘the narro west judi ci al rev i ew of judgments we know

,’ namely judi ci al rev i ew of sanc tions i mposed by pris on d isc iplinary boards.” United States v
. Robertson , 648 F .3d 858, 859 (7th Ci r
. 2011) (quotin g United States v
. Kizeart, 505 F .3d 672, 675 (7th Ci r
. 2007 )). W e wi ll
sus tain the sentence so long as i t i s not plainly unre a so na ble. Boultinghouse, 784 F .3d at 1177; Kizeart, 505 F .3d at 673–75. Becaus e the parties agr ee on the la s t of the sentencing i ssu es rais ed by Raney, we wi ll address i t fi rst. At the v ery end of the sente nc ing hearin g, the government stated that Probation Offi cer Kiel requested an addi tional speci al condit i on that Raney “not hav e an R

V becau se i t’s a mov able resi dence whi ch makes i t v ery di ffi cult to moni tor in ter ms of a sex offender.” The court responded, “The request being that he sell i t?” Kiel then replied, “Sell i t.” R. 3 1 , at 89-90. Raney’s atto rney noted that Raney di scl osed hi s purchas e of the R V on hi s July repo rt to the probat i on offi cer
. Wi thout further dis cus si on, the court then ruled: I’m inclined to say that the R V i s just not appr opriate giv en the defendant’s use of i t wi thout di scl osing i ts use. And so I am goingNo. 14-3265 21

to require that he sell i t and not own i t during the period of hi s condi tion of release. R. 31 at 91. In i ts wri tt e n o r d e r , how ev er

, the court stated the ter ms of the new Speci al Condi tion 10 more broadly : In addi tion, giv en hi s mi sus e of the privi lege, speci al condit ion no. 10 i s added requiring the defendant to sell hi s R V Camper and prohibi tin g hi m from owning any mobile home, whether self- propelling or pulled on a tr ai ler , during the p e r i od of supervis ed release. R. 25, at 5. The g ov ernment concedes that, when ther e i s an inconsi stency between the or al and wri tte n prono unc ements of a sentence, the sentence prono un ced from the bench contro ls. United States v
. Baker, 755 F .3d 515, 523 (7th Ci r
. 2 0 1 4 ); U n ited States v
. Alburay, 415 F .3d 782, 78 8 (7t h Ci r
. 2005). In i ts ini tial bri ef, the government asked thi s court to v acate Speci al Condi tion 10 and or der a li mi ted remand wi th a corr ecti v e instructi on to remove the language added in the wri tte n
v ersi on of the or der

. The government other wi se ur ged the court to affi rm Raney’s new sentence, inclu ding the i mposi tion of Speci al Condi tion 10 as p r o nounced at the sentencing he a r ing. How ev er

, in i ts June 2, 2015 Rule 28(j) lette r , t he government altered its s tance: In further rev i ewing the condi tion for the sale of defendant’s R

V , the government now concedes the case should be remanded so the22 No. 14-3265
di stric t court can consi der the co nditi on in l ig ht of any addi tional arg uments by the parties. See United States v. Shannon , 743 F .3d 496, 500-501 (7th Ci r . 2014). In Shannon , we held that a di stric t court ma y impo se a speci al condi tion of supervis ed release i f, fi rst, the condi tion i s reasonably relat ed to the penolog i cal purpo ses 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 condi tion mus t be reasonably relat ed to (1) the defendant's offens e, hi stor y and characteris

tic s; (2) the need for adequate deter r e nce; (3) the need to prot ect the publi c from further cri mes of the defendant; and (4) the need to prov i de the defe ndant wi th tr eatment. Shannon , 743 F .3d at 500 ; U n i te d States v
. Goo dwin , 717 F .3d 511, 522 (7th Ci r .), cert. denied, 134 S. Ct. 334 (2013); United States v
. Angle, 598 F .3d 3 5 2 , 360–61 (7th Ci r
. 2010). Second, a speci al condi tion c annot inv olv e a gr eater depriv ation of liberty than i s reas o na bl y necess ary to achi ev e the goal of deter rence, incapac i tati on, and rehabi li tation. Shannon 743 F .3d at 500. And thi rd, a speci al condi tion mus t be consi stent wi th any pert inent st atement that the Uni ted St ates Sente ncing Commi ssi o n i ssu es. Shannon, 743 F .3d at 500; 18 U.S.C. § 3583(d)( 3). The di stric t court obli quely addressed the factors that we outlin ed in Shannon , and that explanation w as arg uably suf fic ient

. How ev er

, the recor d also reflects that Raney w as affor ded no notic e that the government w ould seek thi s new condi tion, and Raney had no meaningful oppor tuni ty to object. United States v
. Kappes , 782 F .3d 828, 842 (7th Ci r
. 2015) (wh en i mposing condi tions of s u p e rv i s ed release, adv ance notic e i s required for condi tions that are not li sted in the statut e o r gui delines).No. 14-3265 23
W e there fore accept the gover nm e nt ’s confess i on of err or , v acate Speci al Condi tion 10 in i ts entirety , and remand so that the court may engage in a full analysi s of the appropr i ateness of Speci al Condi tion 10. W e turn finally to Raney ’ s broader objections to hi s nine month sen tence of i mpri sonment and the addi tional tw entyfour months o f superv i sed r e lease, whi ch continu e under the condi tions i mposed at hi s fi rst sentencing, as modi fi ed ov er the y ears. Raney asserts that, in setting hi s new sentence, the court fa ile d to consi der the factors set forth in secti on 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 mus t consi der when deci ding whether to re v oke a ter m of supervis ed release and require the defendant to serv e in pris on all or part of the ter m of supervis ed release). He contends that the court both fai led to consi der the relev ant factors and also relied

on i rr elev ant factors. He ci tes our opini on in United States v
. Thompson , 777 F .3d 368 (7th Ci r
. 2015), for the propo si tion that the court may not i mpose an addi tional ter m of supervis ed release without ev aluating the propr i ety of the condi tions of supervis ed release using the fact o r s li sted in secti on 3553(a). The government concede s that the di stric t court di d not explain i ts choi ce of a tw enty-four month ter m of supervis ed release or justif

y i ts re-im posi tion of the or i gin al condi tions of supervis ed release. Nev ertheless, becau se Raney di d not object
on thi s gr ound at hi s sentencing hearin g, the go ve rnm ent urges
us to find that the court commi tte d no plain err or
. At most, the court asks t ha t we remand so that the court may explain i ts sentence more fully

.24 No. 14-3265
But wi thout any e x p l anati on for i ts selecti on of a tw entyfour month ter m of supervis ed relea se or the condi tions i mposed, we are un able to rev i ew the propriety of the di stric t court’s deci si on. Kappes , 782 F .3d at 845 (in o r d e r to allow for meaningful appellate rev i ew , a di stric t court mus t justif y the condi tions and th e l e ng th of the ter m at sentencing by an adequate statement of reasons, reasonably relat ed to the appli cable § 3553(a) factors). W e there fore v acate and remand the t w e nt y -four month ter m o f superv i sed r elease so that the di stric t court m ay a p p ly the a ppropr i ate sentencing factors and explaini ts deci si on. The court arg uably justifi ed i ts selecti on of the nine month t erm of i mpri sonment. See United States v
. Phillips , 2 0 1 5 W L 3937527, *3, — F .3d — (7th Ci r
. 2015) (court’s co mments justif yin g wi thin-guide lines sentence suffi ci ent where court
corr ectly calculated gui delines ran g e a nd noted the relev ant statuto ry factors supp or tin g the sentence). And as we noted in Phillips , to the ext ent that Raney arg ues that the li st of factors in section 3583(e) i s exclusiv e, he i s mi staken. — F .3d a t

— , 2015 WL 3937527 at *2. A di stric t court may co ns i der the factors li sted in o t he r sub secti ons of secti on 3553(a) ev en though those factors are not menti oned in § 3583(e), so long as the court relies prim arily on the factors li sted in § 3583(e).

— F .3d at —, 2015 WL 3937527 at *2. But “[w] hen a sent ence consi sts of more than one form of puni shm ent, such as pris on,
a fine, restituti on, and supervis ed release, and one of the forms i s as in thi s case alter ed by the appellate court, i t cannot be

assu med that the other s should be unaffected.” United States v
. Downs , 784 F .3d 1180, 118 2 (7 th Ci r
. 2015) (ci tin g Kappes , 7 8 2 F

. 3d at 866-67; Thompson , 777 F .3d at 382). W e there for eNo. 14-3265 25

v acat e t he entire sentence and remand for resentencing consi stent wi th thi s opini on. On remand, the cour t should apply our recent deci si ons addressing the problem of unjusti

fi ed, v ague or inappropr i ate c ondi tions of supervis ed release. See United States v. Sandidge, 784 F .3d 1055, 1067-1069 (7th Ci r
. 2015); Kappes , 782 F .3d at 847-863; Thompson , 777 F .3d at 373-82. Many y ears hav e pass ed since Raney w a s fi rst sentenced and the court fi rst or dered the condi tions governing hi s supervis ed release. The court and the probat i on offi ce now hav e consi der

able exper i ence understanding the challen ges inv olv ed in supervis ing Raney. The condi tionsof supervis ed release may
now be tailored to address those challen ges as we l l as other i ssu es the di stric t court deems necess ary after consi dering the factors set for th in sec tion 3583(e)

. III. In sum, we affir m the di stric t court’s deci si on to rev oke Raney’s super v ised release. W e v acate and remand hi s sentence for a full resentencing. AFF IRM ED IN P ART ; V ACA TED AND REMANDED IN P ART

.