USA v. Kenneth Sandidge

Filing

Filed opinion of the court by Judge Sykes. The judgment is modified; as modified, AFFIRMED. Joel M. Flaum, Circuit Judge; Frank H. Easterbrook, Circuit Judge and Diane S. Sykes, Circuit Judge. [6854746-1] [6854746] [16-2180]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2180
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH SANDIDGE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:12-cr-00159-RL — Rudy Lozano, Judge.

____________________
ARGUED JANUARY 11, 2017 — DECIDED JULY 17, 2017
____________________
Before FLAUM, EASTERBROOK, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Kenneth Sandidge pleaded guilty to
possessing a firearm as a felon, see 18 U.S.C. § 922(g)(1), and
now challenges his sentence for a second time. When the
case was last here, we rejected most of his claims of error but
remanded for resentencing in light of our recent line of cases
requiring a particularized explanation of conditions of
supervised release. United States v. Sandidge, 784 F.3d 1055,
1067–70 (7th Cir. 2015); see United States v. Kappes, 782 F.3d

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828 (7th Cir. 2015); United States v. Thompson, 777 F.3d 368
(7th Cir. 2015); United States v. Siegel, 753 F.3d 705 (7th Cir.
2014).
On resentencing the judge imposed revised conditions of
supervised release, including a condition prohibiting the
“excessive use of alcohol,” defined as including “any use of
alcohol that adversely affects [the] defendant’s employment,
relationships, or ability to comply with the conditions of
supervision.” Sandidge objected to this condition as impermissibly vague, but the judge overruled the objection.
Sandidge now appeals, reiterating his vagueness challenge.
Vagueness doctrine is rooted in the constitutional guarantee of due process and requires that legal mandates be
clear enough to give fair notice to those who must comply
and to guard against arbitrary enforcement. The “adversely
affects” language is loose and indeterminate, raising concerns about arbitrariness in enforcement. But the problem
can be solved by adding a materiality requirement. We
modify the condition to prohibit the use of alcohol that
“materially adversely affects the defendant’s employment,
relationships, or ability to comply with the conditions of
supervision.” As modified, we affirm the judgment.
I. Background
The facts underlying Sandidge’s conviction are detailed
in our first opinion. See Sandidge, 784 F.3d at 1057–60. Only a
brief summary is needed here. Law-enforcement officers in
Lake County, Indiana, found a loaded revolver in Sandidge’s
living room while investigating a report that he attempted to
sexually assault a woman at gunpoint. Sandidge pleaded
guilty to possessing a firearm as a felon, see § 922(g)(1), and

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the judge imposed a sentence of 92 months in prison followed by two years of supervised release. Sandidge has a
history of alcohol abuse, and his drinking played a role in
the circumstances that led to his arrest for the § 922(g)(1)
offense and in his earlier criminal conduct. So the probation
office recommended a special supervised-release condition
prohibiting the use of any mood-altering substance. The
judge imposed this condition along with several others.
Sandidge’s first appeal raised a number of issues relating
to the application of enhancements under the Sentencing
Guidelines and also a challenge to the judge’s approach to
the conditions of supervised release. We found no error in
the Guidelines calculation but vacated the sentence and
remanded for resentencing because the judge did not adequately explain the supervised-release conditions as required by recent circuit caselaw. Sandidge, 784 F.3d at 1063–
69. We also noted that the special condition prohibiting
“mood-altering substances” was impermissibly vague and
overbroad. Id. at 1069 (citing Siegel, 753 F.3d at 713–15).
On remand the judge imposed revised conditions of supervised release. As relevant here, the conditions include a
prohibition on the “excessive use of alcohol,” defined as
follows:
This includes “binge drinking” and “heavy
drinking.” “Binge drinking” is defined as a
pattern of drinking that brings blood alcohol
concentration levels to 0.08 grams per deciliter
or higher. “Heavy drinking” is defined as
“consuming fifteen drinks or more per week,”
or any use of alcohol that adversely affects [the] defendant’s employment, relationships, or ability to

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comply with the conditions of supervision, or
which results in the violation of any local,
state, or federal laws including disorderly intoxication or driving under the influence. (Emphasis added.)

Sandidge lodged a vagueness objection to the highlighted
language in this condition, but the judge rejected it. The case
now returns to us on that issue alone.
II. Analysis
We ordinarily review contested supervised-release conditions for abuse of discretion, United States v. Bickart, 825 F.3d
832, 839 (7th Cir. 2016), but a vagueness challenge is a legal
question on which we owe no deference to the district court;
our review is de novo, United States v. Kahn, 771 F.3d 367, 375
(7th Cir. 2014); see also Cooper Indus. v. Leather Tool Grp.,
532 U.S. 424, 435 (2001). Vagueness doctrine is a component
of the Constitution’s guarantee of due process and “rests on
concerns about fair notice and arbitrary enforcement.”
United States v. Jones, 689 F.3d 696, 701 (7th Cir. 2012), abrogated on other grounds by Johnson v. United States, 135 S. Ct. 2552
(2015).
This is not the first time we have addressed vagueness
concerns about alcohol-related conditions of supervised
release. In Siegel we vacated a supervised-release condition
prohibiting the consumption of “mood-altering substances”
and “excessive use of alcohol.” 753 F.3d at 715. As an aside,
we noted that the U.S. Probation Office routinely provides to
defendants on supervised release an orientation brochure
that contains a definition of the phrase “excessive use of
alcohol.” See id. That definition, which we quoted, uses

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language identical to the condition at issue here. We observed in passing that the “adversely affects” part of the
definition is unclear, id. at 715–16, but the definition was not
itself before the court so we considered the matter no further.
The government suggests that a passage in United States
v. Baker can be read as a tacit endorsement of the language at
issue here. 755 F.3d 515, 524 (7th Cir. 2014). Not so. The
condition at issue in Baker prohibited any use of alcohol, and
the government conceded that the defendant’s circumstances
didn’t justify it. Id. We vacated and remanded to allow the
district court to craft a more narrowly tailored condition. To
guide the proceedings on remand, we traced the dicta from
Siegel but specifically reserved judgment on whether the
“adversely affects” language would withstand a vagueness
challenge. Id.
Now that the “adversely affects” language is squarely
before us, incorporated into a criminal judgment and backed
by a sanction of revocation and reimprisonment, we must
decide whether it survives review for vagueness. The condition covers “any use of alcohol that adversely affects [the]
defendant’s employment, relationships, or ability to comply
with the conditions of supervision.” This open-ended and
indeterminate language indeed raises concerns about fair
notice to defendants trying to comply and leaves room for
arbitrary enforcement by supervising agents.
What qualifies as an “adverse” effect on a defendant’s relationships, employment, or compliance capabilities? Do
minor or attenuated effects count? If Sandidge is five
minutes late to work because he had a few drinks the night
before and overslept, has he violated the condition? What if
a friend who is a teetotaler takes offense when Sandidge

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consumes any amount of alcohol in his presence? Does that
count? How about a falling-out with a friend after a single
beer? The capacious and indefinite language of this condition leaves the boundaries uncertain and allows room for
arbitrariness to creep in.
The unchallenged parts of the definition do not cabin the
“adversely affects” language. The definition also prohibits
(1) a specific number of drinks per week; (2) alcohol consumption resulting in a specific blood-alcohol concentration;
and (3) alcohol consumption resulting in conduct that violates the law. These terms are sufficiently clear, see Siegel,
753 F.3d at 715, but they are alternative definitions of “excessive use,” wholly separate from the “adversely affects”
clause. They do not purport to operate as limiting principles.
A limiting principle is needed. The concerns we expressed in Siegel about the lack of clarity in the “adversely
affects” language can be adequately addressed by adding
the modifier “materially,” which the Supreme Court has
upheld against a vagueness challenge—even when the topic
of regulation is speech. See Thomas v. Chicago Park Dist.,
534 U.S. 316, 324–25 (2002). The concept of “material adverse
effects” is sufficiently clear and provides a familiar and
administrable standard to guard against arbitrary enforcement. This ready fix cures the vagueness problem first
identified in Siegel.
Accordingly, we modify the definition of “excessive use
of alcohol,” replacing the “adversely affects” language with
the following: “any use of alcohol that materially adversely
affects the defendant’s employment, relationships, or ability
to comply with the conditions of supervision.” As modified,

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the condition is not impermissibly vague. The rest of the
definition is unchallenged.
JUDGMENT MODIFIED; AS MODIFIED, AFFIRMED.