U.S.A. v. Sicher

Decision Date07 December 2000
Docket NumberNo. 00-1862,00-1862
Citation239 F.3d 289
Parties(3rd Cir. 2000) UNITED STATES OF AMERICA, v. SHANNON SICHER, Appellant Submitted Under Third Circuit LAR 34.1(a)
CourtU.S. Court of Appeals — Third Circuit

James F. Brose, Esquire Brose Law Firm 600 N. Jackson Street Suite 106 Media, PA 19063 Attorney for Appellant

David E. Fritchey, Esquire Assistant U.S. Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106 Attorney for Appellee

Before: BARRY and COWEN, Circuit Judges, and WARD,* District Judge

OPINION OF THE COURT

BARRY, Circuit Judge.

Shannon Sicher appeals from the District Court's denial of her motion to set aside a special condition of supervised release which prevents her from entering Lehigh and Northampton counties, in Pennsylvania, without per mission from her probation officer. Because that special condition is related to Sicher's history and characteristics, involves no greater deprivation of liberty than is necessary, and is not inconsistent with the pertinent policy statements issued by the Sentencing Commission, we will affirm the order of the District Court.

We shall only review the factual and procedural background of this case as necessary to provide context for the discussion which follows. On May 5, 1995, Sicher pled guilty to one count of conspiracy to distribute cocaine and marijuana in violation of 21 U.S.C. S 846 and one count of aiding and abetting the distribution of marijuana near a school in violation of 21 U.S.C. S 860(a). On March 21, 1996, she was sentenced to six years imprisonment followed by ten years supervised release. On July 22, 1998, the District Court granted Sicher's motion to modify her sentence pursuant to 28 U.S.C. S 2255 and resentenced her to time served and ten years of supervised release, subject to certain conditions. The two conditions relevant to this appeal were that she complete the first eight months of her supervised release in a community treatment center, and that she not enter the Allentown area, i.e. Lehigh or Northampton counties, unless given permission to do so by her probation officer. Sicher did not object to either of these conditions when they were imposed.

When the District Court resentenced Sicher, it had before it substantial evidence concerning the conditions under which she was raised and her activities prior to incarceration. This evidence included the report of Kirk Heilbrun, Ph.D., a forensic psychologist; Sicher's allegations in support of her S 2255 motion; and the original presentence report. We will not recite this tragic history in every detail. It is sufficient to note that when Sicher was as young as nine years old, her family and friends began pushing her towards a life of prostitution, drug use, and other criminal activity. By the age of twelve, she was prostituting herself to support her mother and her mother's drug habit. She used many drugs herself, attempted suicide on several occasions, and was arrested numerous times as a juvenile and as an adult. When, as a teenager, she made an attempt at reform, her associates quickly pulled her back to a life of crime. When she went to prison, however, she made strong progress toward turning her life around by completing drug treatment and earning high grades in college classes. In her conversations with Heilbrun, Sicher admitted to experiencing significant anxiety whenever she was in the Allentown area, and she expressed a desire to "get her kids and move away from Allentown."

After spending approximately six months at a community treatment center in Philadelphia, Sicher violated the terms of her supervised release by associating with a felon and also by visiting one of her co-defendants in Allentown without permission from her probation officer. In January 1999, she was expelled from the treatment center. At a hearing on February 12, 1999, the District Court revoked the prior order of supervised release and sentenced her to twenty-four months imprisonment, to be followed by eight years of supervised release subject to the conditions previously imposed. Again, Sicher made no objection to the territorial limitation. She appealed, but that appeal was subsequently dismissed with her consent.

On May 24, 2000, Sicher filed a pro se motion to amend the conditions of supervised release, asking the District Court to remove the restriction that prohibited her entry into Lehigh and Northampton counties. She argued that the circumstances of her family's life had changed significantly since the restriction was first imposed and she wished to return to her mother's home so that she could care for her mother and her two children. On June 1, 2000, the District Court denied the motion. It is from this denial that Sicher now appeals.

This Court utilizes an abuse of discretion standard when reviewing the imposition of special conditions of supervised release. United States v. Loy, 191 F.3d 360, 369-70 (3d Cir. 1999), cert. denied, 120 S.Ct. 1429 (2000). Because Sicher did not object to the imposition of the territorial limitation or the refusal to set that condition aside, however, the District Court's decision is reviewed for plain error. United States v. Pardo, 25 F.3d 1187, 1193 (3d Cir. 1994). Under either standard, we discern no error. Imposition of supervised release is governed by 18 U.S.C. S 3583, which provides, in part, that:

"[t]he court may order, as a further condition of supervised release, to the extent that such condition --

(1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);

(2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and

(3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a);

any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and b(12) through b(20), and any other condition it considers to be appropriate.

18 U.S.C. S 3583(d). The relevant sections of S 3553(a) provide that when a district court imposes a sentence, it must consider:

(1) the nature and circumstances of the offense and the history and characteristics of the defendant;

(2) the need for the sentence imposed --

. . . .

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other corrective treatment in the most effective manner[.]

Sicher argues that the condition preventing her from entering Lehigh and Northampton counties is invalid for three reasons. First, she argues, it is not reasonably related to the nature and circumstances of her crime. Second, it involves a greater deprivation of liberty than is reasonably necessary. Third, it is inconsistent with the pertinent policy statements of the Sentencing Commission.

With the reference to her first argument, Sicher seems to be suggesting that a condition of supervised release must relate to both the nature of the offense and the circumstances and history of the defendant. Section 3553(a)(1), indeed, uses the word "and" in listing the factors that must be considered by a District Court in imposing sentence. While this Court has not spoken on the issue, other circuits have determined that despite the presence of the word "and," it is not necessary for all of the factors identified in S 3553(a) to be present before a special condition of supervised release may be imposed. See, e.g., United States v. Kent, 209 F.3d 1073, 1076 n.3 (8th Cir. 2000) ("[t]he special condition imposed need not be related to each and every one of the factors"); United States v. Abrar, 58 F.3d 43, 46 (2d Cir. 1995) ("a condition may be imposed if it is reasonably related to any one or more of the specified factors"); United States v. Johnson, 998 F.2d 696, 698 (9th Cir. 1993) (the language of S 3553(a) offers "a list of factors to guide the district court's discretion rather than a checklist of requisites, each of which must be found before any condition of supervised release may be prescribed"). No circuit has held otherwise.

There was ample evidence that if Sicher were to return to the location and associates that shaped her youth, she would be extremely likely to return to a life of crime. Thus, the special condition disputed here is related to "the history and characteristics of the defendant," and also serves to promote rehabilitation consistent with S 3553(a)(2)(D). The Eleventh Circuit has upheld a similar condition that had the same effect. See United States v. Cothran, 855 F.2d 749 (11th Cir. 1988). In Cothran, the defendant's probation was subject to the condition that he remain outside Fulton County, Georgia, unless given permission to enter the county by his probation officer. Id. at 750. Atlanta is located in Fulton County, and the...

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