United States v. Carl Moose , 893 F.3d 951 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3536
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARL MOOSE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15-CR-175-1 — Charles R. Norgle, Judge.
____________________
ARGUED SEPTEMBER 14, 2017 — DECIDED JUNE 27, 2018
____________________
WOOD, Chief Judge, and RIPPLE and HAMILTON, Circuit
Judges.
HAMILTON, Circuit Judge. Without a plea agreement, de-
fendant Carl Moose pleaded guilty to defrauding investors in
violation of the federal wire fraud statute, 18 U.S.C. § 1343.
The district court gave him a below-guideline sentence of two
years in prison and an additional two years of supervised re-
lease. Moose has appealed, challenging both his prison sen-
2 No. 16-3536
tence and the length and several specific conditions of his su-
pervised release. We affirm the prison sentence and the length
of the supervised release term, but remand for the limited
purpose of considering several conditions of supervised re-
lease. We address in turn Moose’s challenges to: (1) the loss
amount the district court used in calculating his guideline
sentencing range; (2) the fraud guideline’s treatment of loss
amounts more generally; and (3) the supervised release por-
tion of Moose’s sentence, including the duration and condi-
tions of the supervised release sentence.
I. Loss Amount
We review de novo the district court’s legal interpretations
of the Sentencing Guidelines, but we review factual findings
as to loss amount for clear error. United States v. White, 883 F.3d
983, 986 (7th Cir. 2018). The district court found under
U.S.S.G. § 2B1.1(b) (2015) that the applicable loss amount for
Moose’s offense was about $480,000, which added 12 offense
levels to his guideline calculation. Moose argues the correct
amount was only about $70,000.1 If that were correct, six levels
would need to be subtracted from the court’s calculation of
the offense level. See U.S.S.G. § 2B1.1(b)(1) (six-level increase
for loss amount of $40,000–$95,000, and twelve-level increase
for loss amount of $250,000–$550,000). To explain the issue,
we must explain Moose’s fraud.
1 In the text we have rounded these and other relevant dollar amounts
for narrative clarity. The actual numbers are as follows: Moose collected
$680,945 from investors and invested $200,000, keeping $480,945 for him-
self. Moose argues the loss amount should be $70,445 based on his collec-
tion of $680,945 and his claim that shares of stock in California Energy &
Power were worth $610,500 in July 2011.
No. 16-3536 3
In early 2007, Moose began soliciting investors with a
stock tip: a company called California Energy & Power (CEP)
was developing vertical-axis wind turbines. He advised in-
vestors to act before an investment window closed and CEP
began paying its first dividends. Rather than broker sales of
CEP stock to the investors, though, Moose formed his own
company, Infiniti Wind Technology, to serve as the investment
vehicle for purchasing CEP stock. He persuaded his investors
to buy shares of Infiniti, which he controlled, by saying that
Infiniti would in turn buy shares of CEP.
Moose told investors that he planned to raise $250,000
through Infiniti to purchase four percent of CEP. He said that
ownership of Infiniti would be divided into 20 units distrib-
uted to individuals based on their investments in that com-
pany. He did not tell the investors that he would reserve for
himself a portion of the invested funds as either a finder’s fee
or management fees for Infiniti. In July 2008, Moose sur-
passed his goal of raising $250,000. Based on his representa-
tions to his original investors, Moore should have stopped
raising money under the Infiniti name at that point and in-
vested Infiniti’s cash in CEP stock.
Moose broke the promises he made to investors in three
ways. He continued to raise money from investors in ex-
change for ownership units of Infiniti after he reached his
goal, raising a total of $680,000. He bought only three percent
of CEP stock despite a promise to buy four percent. Most im-
portant, instead of investing all the $680,000 he received from
16 investors under this investment scheme or even the
$250,000 in his statements to investors, Moose invested only
$200,000 in CEP. The remaining $480,000 he just took for him-
self. In July 2011, facing pressure from angry investors, he
4 No. 16-3536
stepped down as manager of Infiniti and relinquished his con-
trol of the company.
Moose eventually pleaded guilty to one count of wire
fraud in violation of 18 U.S.C. § 1343. The district judge deter-
mined that the Sentencing Guidelines recommended a prison
term of 41 to 51 months. In reaching this figure, the judge con-
cluded that the intended loss resulting from the fraud was
$480,000 and the actual loss was $406,000. The judge sen-
tenced Moose to 24 months in prison and 24 months of super-
vised release.
The Sentencing Guidelines for fraud and similar crimes
give substantial weight to the relevant loss amount. See
U.S.S.G. § 2B1.1. The relevant amount is the greater of the ac-
tual loss or the intended loss. Id., cmt. 3(A). Actual loss is “the
reasonably foreseeable pecuniary harm that resulted from the
offense,” and intended loss is the “pecuniary harm that the
defendant purposely sought to inflict.” Id.
Since Moose invested only $200,000 as promised of the
$680,000 he persuaded investors to entrust to him and pock-
eted the other $480,000, the district court’s loss finding of
$480,000 is easy to understand. Moose argues, however, that
he should have benefited from a guideline feature that calls
for a measure of leniency on the loss calculation, at least in
limited circumstances. If a defendant returned money or
property to a victim before an offense was detected, the value
of the returned money or property is deducted from the loss
amount. Id., cmt. 3(E)(i). The time of detection is the earlier of
either the time of actual discovery or the time when the “de-
fendant knew or reasonably should have known that the of-
fense was detected or about to be detected by a victim or gov-
ernment agency.” Id.
No. 16-3536 5
Though Moose admits that he pocketed the $480,000, he
argues for a loss figure of just $70,000. To reach that amount,
Moose begins with the $680,000 that his victims gave him to
invest in CEP. He points out that he initially invested $200,000
of that money before fraud was detected. So far, so good.
Moose then muddies the water with internally inconsistent
arguments. To qualify for the discount based on returning sto-
len property before the crime was detected, he contends that
he returned this property before the fraud detection in July
2011. His theory is that the investors always had ultimate con-
trol over Infiniti through their ownership shares, despite his
day-to-day stewardship. Moose reasons, then, that he “re-
turned” the investors’ property on the days he purchased the
CEP stock in 2007 and 2008. But if that were correct, the prop-
erty had, at the time of the supposed return, a value of only
$200,000, which would not help him avoid the loss amount of
$480,000. To maximize the value of that property return,
Moose also argues the date he should be deemed to have re-
turned the property to investors should be in July 2011, since
that was when he turned over day-to-day control of Infiniti.
He argues that at that time the shares of CEP stock were worth
about $610,000.
This theory is full of flaws. We first note the very shaky
factual support for that $610,000 valuation. As support for
that number, Moose points to CEP’s stock transfer ledger,
which shows that the company issued stock valued at $4.07
per share to two investors in March and May 2011, roughly
contemporaneous with the July 2011 detection of his fraud.
He then multiplies that per-share value by the 150,000 shares
owned by Infiniti to reach $610,000. The government con-
tended, however, that the stock was essentially worthless in
July 2011 based on the statement of CEP founder Peter Coye
6 No. 16-3536
that the company was out of money by May 2012. Coye also
noted that since the company had no revenue and no profits,
historically the CEP board itself had determined the value of
CEP and that these “valuations were subjective and based on
Research and Development.” He also described the invest-
ment as “highly speculative.” A company’s internal valuation
of its admittedly highly speculative worth does not provide a
particularly sound basis for determining the fair market value
of its stock. We have no indication that these stock sales at
these values were arm’s-length transactions. In any event, the
district court certainly was not required to accept Moose’s pro-
posed valuation.
More fundamental, though, Moose’s argument depends
on internal contradictions. If Moose should be deemed to
have returned the property to the investors on the dates he
had Infiniti buy the CEP stock, then the relevant value on
those dates would be exactly what Infiniti paid for the stock:
$200,000. Moose would not be entitled to the increase in the
property’s value after he supposedly returned it. But if Moose
should be deemed to have returned the property to the inves-
tors only when he gave up management control of Infiniti in
July 2011, then he receives no guideline credit for returning
the property because the investors had already discovered the
fraud at that time. The law does not need to accommodate this
creative argument. Under either branch of these inconsistent
positions, the loss amount would be $480,000, not Moose’s
$70,000 figure.
An even more fundamental and simpler attack on Moose’s
now-you-see-it, now-you-don’t argument focuses on its com-
plete failure to account for the missing $480,000, which is the
No. 16-3536 7
central concern of the loss amount here. The government’s ev-
idence showed that Moose collected $680,000. He invested
$200,000 and embezzled the other $480,000. This should not
be a complicated problem. Moose is not entitled to set off the
gains on the legitimate investments against the money he em-
bezzled. Many embezzlers intend to pay back the money they
have stolen. How often have courts heard explanations like,
“I just needed a loan to tide me over, and I was going to pay
it all back after …” perhaps a visit to the horse races or the
casino? We explained in United States v. Lauer, 148 F.3d 766,
768 (7th Cir. 1998): “He is nevertheless an embezzler to the full
extent of the amount he took, no matter how golden his inten-
tions or happy the consequences.”
We added in Lauer that “the amount of the intended loss,
for purposes of sentencing, is the amount that the defendant
placed at risk by misappropriating money or other property.”
Id. The district court did not err by giving Moose credit for the
$200,000 that he actually used to invest in CEP. The court did
not have to treat that money as misappropriated. We assume
Moose did with that money what he said he would do with it,
and the government does not contend that CEP was a Ponzi
or pyramid scheme or other complicated financial fraud.
Thus, the properly invested $200,000 was at risk of loss due to
ordinary investment risk; it was not at risk due to fraud. In
this fraud, Moose simply pocketed the rest of the money—the
other $480,000. Even if Moose intended that legitimate growth
in the value of CEP stock would cover his theft, that intention
would not matter any more than another embezzler’s inten-
tion to pay the stolen money back with the money he hoped
to win by gambling with it. The district court did not err in its
guideline calculations for Moose.
8 No. 16-3536
II. Reasonable Prison Sentence
After calculating the guideline recommendations cor-
rectly, the district court imposed a prison sentence of 24
months, well below the 41 to 51 month guideline range. On
appeal, Moose also argues that the Sentencing Guidelines
give unreasonable weight to the loss calculation. This is an
odd case for such a challenge, given that Moose received a
sentence well below the guideline range, but we are not per-
suaded in any event.
We review the reasonableness of a sentence for abuse of
discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). A
sentencing court must impose terms that are “sufficient, but
not greater than necessary, to comply with” statutory sentenc-
ing goals: the need to “reflect the seriousness of the offense,
to promote respect for the law, and to provide just punish-
ment for the offense;” “to afford adequate deterrence to crim-
inal conduct;” “to protect the public from further crimes of the
defendant;” and “to provide the defendant with needed edu-
cational or vocational training, medical care, or other correc-
tional treatment in the most effective manner.” 18 U.S.C.
§ 3553(a)(2).
Balancing these often-conflicting goals is a difficult task,
and one that federal judges widely recognize as their most
difficult responsibility. The Sentencing Commission is
charged with providing guidance in this area because of its
institutional capacity to “base its determinations on empirical
data and national experience, guided by a professional staff
with appropriate expertise.” Kimbrough v. United States, 552
U.S. 85, 109 (2007), quoting United States v. Pruitt, 502 F.3d
1154, 1171 (10th Cir. 2007) (McConnell, J., concurring). Despite
the Commission’s expertise, sentencing judges must exercise
No. 16-3536 9
their discretion and must recognize that they may vary from
the guideline recommendations based on the district court’s
“superior position to find facts and judge their import under
§ 3553(a).” Gall, 552 U.S. at 51, quotation omitted. In fact, dis-
trict judges are not permitted to presume the guideline rec-
ommendation is reasonable. Rita v. United States, 551 U.S. 338,
351 (2007).
Moose asks us to declare his sentence unreasonable on the
theory that the guideline enhancements for fraud loss
amounts are inherently unreasonable. He claims that the
graduated enhancements for rising loss amounts in § 2B1.1
are “not based on empirical data or on national experience.”
For support, he cites articles finding a lack of evidence that
prison has a greater deterrent effect on white-collar crime
than does probation. He also notes the escalation of recom-
mended punishments by the Sentencing Commission in the
fraud loss table since the guidelines first took effect in 1987.
Based on his premise that the loss provisions of the fraud
guideline are not based on the Commission’s institutional
strengths, he cautions that district judges should be extra
skeptical of their recommendations in white-collar frauds like
his.
Taken purely as theory, divorced from the facts of this case,
this argument fails for two reasons. First, Moose focuses on
only the deterrent effects of these enhancements. He over-
looks the retributive purposes of sentencing. The first factor
in § 3553(a)(2) requires a sentencing judge to impose a sen-
tence “to reflect the seriousness of the offense, to promote re-
spect for the law, and to provide just punishment for the of-
fense.” Even if we accepted Moose’s argument that probation
10 No. 16-3536
is as effective a deterrent as prison time for people contem-
plating crimes like his, he has provided no reason to require
more lenient sentences for high-dollar, white-collar crimes.
Second, Moose’s argument that the loss enhancements are
not based on the Commission’s institutional expertise is mis-
taken. Even if the enhancements may lack robust empirical
support related to deterrence, they have foundations in em-
pirical data and national experience related to the goals of fair
sentencing and retribution. Justice Breyer, who was a member
of the original Commission before he joined the Supreme
Court, has explained that “to avoid unfair anomalies” among
thousands of examined cases, the Commission “increase[d]
certain ‘white collar’ sentences when necessary to avoid dis-
parity between ‘white collar’ and ‘blue collar’ crime.” Justice
Stephen Breyer, Federal Sentencing Guidelines Revisited, 11 Fed.
Sentencing Reporter 180, 181 (1999). That data might not re-
flect the deterrent effects of harsher sentences, but it does re-
flect the Commission’s policy judgment that increasing sen-
tences for white-collar crimes would promote greater respect
for the rule of law.
Moose has cited scholarly work that has focused on deter-
rence, but again, deterrence is not the only goal. See Francis T.
Cullen et al., Prisons Do Not Reduce Recidivism: The High Cost
of Ignoring Science, 91 Prison J. 48S (2011); David Weisburd et
al., Specific Deterrence in a Sample of Offenders Convicted of
White-Collar Crimes, 33 Criminology 587 (1995). To the extent
Moose’s sources address the § 3553(a) sentencing goals of ret-
ribution and respect for the rule of law, those sources
acknowledge the importance of longer prison terms that re-
spond to public concern for fairness. See Cullen et al., supra,No. 16-3536 11
at 59S (“We recognize, of course, that the decision to incarcer-
ate is complex, involving the seriousness of the act, the past
record and culpability of the offender, and community values
that may wish some crimes to be harshly punished.”); Zvi D.
Gabbay, Exploring the Limits of the Restorative Justice Paradigm:
Restorative Justice and White-Collar Crime, 8 Cardozo J. Conflict
Resol. 421, 475–76 (2007) (“[I]t is important that the restorative
component to the public response to white-collar crime does
not infringe on important retributive notions such as … pun-
ishment of the offenders according to their ‘just deserts.’”);
Michael Tonry, Purposes and Functions of Sentencing, 34 Crime
& Just. 1, 39 (2006) (“Recent prosecutions and severe punish-
ments in white-collar crime cases offer an example of the sys-
tem responding to a widespread public perception that it was
unjust that corporate malefactors … often received milder
punishments than less privileged citizens convicted of much
less serious crimes.”).
We do not mean to suggest that the loss enhancements of
the fraud guideline are beyond debate. Colleagues on other
courts have expressed strong reservations about the effects of
the guideline in particular cases, and Moose cites United States
v. Algahaim, 842 F.3d 796 (2d Cir. 2016) (“remand is appropri-
ate to permit the sentencing judge to consider whether the sig-
nificant effect of the loss enhancement, in relation to the low
base offense level, should result in a non-Guidelines sen-
tence”), and United States v. Adelson, 441 F. Supp. 2d 506, 512
(S.D.N.Y. 2006) (finding application of the loss amount guide-
line combined with other guidelines in securities fraud
showed “travesty of justice that sometimes results from the
guidelines’ fetish with abstract arithmetic”).
12 No. 16-3536
Moose reads these critiques too broadly. Both Algahaim
and Adelson show the mismatch that can occur when broadly
applicable guidelines are applied to specific facts. The district
judge in Adelson concluded that the loss enhancement would
work an injustice where the president of a company would
have received an effective life sentence for covering up the
end of what he “belatedly learned was the substantial fraud
perpetrated by others” and served almost as an “accessory af-
ter the fact” to the accountants who designed the scheme and
the CEO who the government believed, but could not prove,
had participated in it. 441 F. Supp. 2d at 513; id. at 507, 512.
Algahaim pointed out that the Sentencing Commission took an
unusual approach to loss in fraud cases by using a very low
base offense level with larger and larger enhancements for
larger and larger losses. Without finding that the Algahaim de-
fendants were sentenced in error, the Second Circuit re-
manded so that the district court could consider whether non-
guideline sentences would be appropriate, while recognizing
that the district court might lawfully impose the same sen-
tences again. 842 F.3d at 800.
Moose’s case does not present any comparable arguments
for greater leniency. He was apparently the sole perpetrator
of his fraud. He did not simply cover up the bad acts of others.
He just put in his pocket $480,000 that he obtained under false
pretenses. On these facts, we cannot say that the guideline loss
enhancements were applied unreasonably here. As we have
made clear, district judges are as free to disagree with the pol-
icy behind the loss amount enhancement as they are with any
other guideline. See United States v. Corner, 598 F.3d 411, 415
(7th Cir. 2010) (en banc). But we have also made clear that sen-
tencing judges may choose to follow them and need not ad-
dress explicitly all arguments questioning the reasonableness
No. 16-3536 13
of the Sentencing Guidelines. E.g., United States v. Rosales, 813
F.3d 634, 637–38 (7th Cir. 2016).
In a related point, Moose also argues that the court’s resti-
tution order to repay $405,945 was clearly erroneous because
the district court “simply impos[ed] the entire loss amount as
restitution” and did not consider his financial situation and
prospects under 18 U.S.C. § 3664(f)(2). This argument has no
merit. Section 3664(f)(1)(A) requires courts to “order restitu-
tion to each victim in the full amount of each victim’s losses,”
and the district court did that here. See United States Day, 418
F.3d 746, 758 (7th Cir. 2005) (“Congress … believed that the
law should be concerned first with the victim’s right to full
restitution … . Therefore, the fact that a defendant may never
be able to satisfy a restitution award is no longer grounds for
reversing that award.”). We also reject the claim that the com-
bination of restitution and prison time renders the sentence
unreasonable. Moose committed a serious crime and received
a below-guideline sentence. His sentence was not unreason-
ably severe.
III. Supervised Release
Finally, Moose challenges the duration and conditions of
his supervised release. We review the district court’s imposi-
tion of the supervised release term and its conditions for
abuse of discretion. United States v. Shannon, 851 F.3d 740, 743
(7th Cir. 2017). When district courts impose supervised re-
lease terms, they must consider the sentencing factors in 18
U.S.C. §§ 3553(a) and 3583(d) and explain the reasons for im-
posing supervised release and any discretionary conditions.
United States v. Flournoy, 842 F.3d 524, 531 (7th Cir. 2016);
United States v. Thompson, 777 F.3d 368, 377 (7th Cir. 2015). The
judge need not provide an individual explanation for a prison
14 No. 16-3536
term and a separate explanation for a supervised release term.
United States v. Bloch, 825 F.3d 862, 870 (7th Cir. 2016). One
“overarching explanation” for both prison and supervised re-
lease terms may suffice if it provides the defendant with a rea-
sonable explanation for the terms imposed. Id.One overarching explanation often will provide an ade-
quate explanation for the duration of supervised release. Su-
pervised release serves many of the same penal functions as a
prison term, so the same rationale for a prison term will often
serve equally as well to adequately explain the duration of su-
pervised release. Id. at 871. This is particularly so where the
sentencing judge imposes a prison term below the guideline
range. In those circumstances, the supervised release may be
seen as a form of lenity, where the sentencing judge has de-
cided to trade off a portion of the recommended prison sen-
tence for a longer period of supervised release.
Here, the judge provided one justification, and by its terms
that rationale applied only to the prison term. The judge said
that “if a fair, but substantial sentence[] is not imposed, it
would tend to deprecate the seriousness of what you have
done. It would not serve as a deterrent to you. And a sentence
too light would not serve as a deterrent to others. So it is the
judgment of the Court that you serve 24 months, two years, in
the Bureau of Prisons.” The judge considered mitigating fac-
tors and declared again “the judgment of the Court here that
24 months is just enough.”
This rationale applies equally well, however, to the deter-
mination that the term of supervised release would be “just
enough” when combined with the prison sentence. Moose’s
combined prison term and supervised release term still add
up to only about the middle of the recommended guideline
No. 16-3536 15
range for prison alone. We do not think that a reasonable de-
fendant would walk away from this sentencing hearing won-
dering about the reason for the length of the supervised re-
lease term. The judge’s overarching rationale for the below-
guideline prison sentence explained that duration sufficiently.
The judge then pivoted to the conditions of supervised re-
lease. Here the judge erred by failing to explain his reasons
for imposing a few terms of supervised release to which
Moose objected. We have said repeatedly that sentencing
judges “need not belabor the obvious” when confronted with
an objection where “anyone acquainted with the facts would
have known without being told why the judge had not ac-
cepted the argument.” United States v. Kappes, 782 F.3d 828, 856
(7th Cir. 2015), quoting United States v. Gary, 613 F.3d 706, 709
(7th Cir. 2010); see also, e.g., United States v. Sainz, 827 F.3d 602,
608 (7th Cir. 2016); United States v. Lyons, 733 F.3d 777, 785 (7th
Cir. 2013). So requiring drug testing for drug offenders or re-
stricting contact with children for offenders who preyed on
children does not impose a burden of explanation on sentenc-
ing courts. But where the reasons for conditions are less obvi-
ous, sentencing judges must address directly objections raised
by defendants. Explanations need not be longwinded, but the
judge must offer some explanation for appellate review, as
deferential as that review may be. See United States v. Castaldi,
743 F.3d 589, 595 (7th Cir. 2014).
At sentencing in this case, Moose objected to the restitu-
tion order, the drug testing requirement, and the requirement
that he permit a probation officer to visit him at work Specif-
ically, Moose’s attorney asked that the interest on the restitu-
tion amount be waived until Moose left prison; explained that
nothing indicated that Moose had ever used illegal drugs; and
16 No. 16-3536
expressed concern that a visit from a probation officer in the
workplace could adversely affect his future employment. To
each of these reasonable but contestable objections, the dis-
trict judge offered the same reply: “The objection is over-
ruled.” The court’s terse declarations did not provide the “rea-
sons for its imposition of the particular sentence” required by
§ 3553(c).
The government contends that the district court’s explana-
tion for the prison term provides an “overarching explanation
and justification” sufficient to support both the prison term
and the supervised release term. Bloch, 825 F.3d at 870. For
support, the government draws on the district court’s conclu-
sory statements during its discussion of supervised release
that given “the nature and circumstances of this case, the
Court finds that they are appropriately … imposed by the
Court” and that the conditions for supervised release were
“recommended by the probation officer” and considered
“within the context of all of the information before the Court
in the report, as well as submissions by defense counsel, and
the nature of the allegation to which the defendant has en-
tered his plea of guilty.”
In the face of the specific, rational objections by Moose,
this conclusory statement was not adequate. It did not ad-
dress the objections. Concerning restitution, Moose made the
reasonable argument that interest on the amount should be
waived while he was in prison “because if the interest is grow-
ing for two years while he’s in prison and can’t afford to pay
restitution, then what is a difficult amount to pay becomes an
impossible amount to pay.” The argument may be a bit over-
blown in drawing the line between difficult and impossible
payments, especially since the judgment form is silent on the
No. 16-3536 17
matter of interest accrual during his incarceration. Neverthe-
less, it is clear that accrued interest would create a greater bur-
den on the defendant. This greater burden may well be justi-
fied, of course, but the district court needed to explain why it
is justified.
Similarly, the court’s rejection of Moose’s objection to drug
testing required some explanation. Moose claims he has no
history of drug abuse, and submitting to drug testing period-
ically would be an undue nuisance if imposed without sound
reason. Maybe, maybe not. Drug testing is a mandatory con-
dition of supervised release, but the condition “may be ame-
liorated or suspended” in certain cases. 18 U.S.C. § 3583(d).
To qualify for amelioration or suspension, the defendant must
have “a low risk of future substance abuse.” § 3563(a)(5).
Moose has three convictions for driving under the influence
of alcohol, though the last one occurred more than 20 years
ago. The presentence report noted that a person close to
Moose reported that while he operated the scheme, he “en-
gaged in drinking binges, during which he would become in-
communicado with family for one or two days and neglect
familial and professional obligations.” Even though alcohol
abuse may not equal drug abuse, a court would not be unrea-
sonable in denying amelioration or suspension of mandatory
drug testing. In doing so, however, the court needed to re-
spond to the objection so that the defendant and a reviewing
court can understand its reasons.
Finally, Moose takes issue with the condition permitting
the probation officer to visit his workplace. Moose’s main ob-
jection is that the visitation condition is overly broad and may
cause him to lose his job if the officer visits him at work.
Again, this concern was fairly stated, though its conclusion is
18 No. 16-3536
debatable because we “fairly presume [the defendant]’s pro-
bation officer will apply the conditions in a reasonable man-
ner.” Kappes, 782 F.3d at 857, quoting United States v. Smith, 606
F.3d 1270, 1283 (10th Cir. 2010). Nevertheless, we do not be-
lieve the lack of explanation is harmless. Moose’s concern
about his job security after release from prison is a legitimate
concern. The district court should have addressed it with
more than unexplained rejection.
We repeat what we have said before. Though a judge
“need not give a speech about each condition, … sentencing
judges rarely, if ever, should list a multitude of conditions
without discussion.” Kappes, 782 F.3d at 846. The needs for
these challenged conditions were not so obvious here that ex-
planation was unnecessary in overruling objections. The de-
fendant, through his attorney, expressed reasonable concerns
about several of the conditions imposed on him through su-
pervised release. The sentencing judge rejected these argu-
ments without explanation. In doing so, the sentencing judge
failed to exercise properly his discretion in imposing a super-
vised release sentence. Because of this failure, we VACATE
the challenged conditions of supervised release and
REMAND for the limited purpose of addressing those condi-
tions of supervised release. The 24-month prison sentence and
24-month supervised release terms, however, are AFFIRMED.