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                                                                      [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 14-10630
                               ________________________

                     D.C. Docket No. 8:13-cr-00500-RAL-MAP-1



UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                            versus

NICHOLAS SCHEWE,

                                                                       Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________

                                       (March 2, 2015)

Before ED CARNES, Chief Judge, COX, Circuit Judge, and ROYAL, * District
Judge.

PER CURIAM:

   *
      Honorable C. Ashley Royal, United States District Judge for the Middle District of Georgia,
sitting by designation.
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       Nicholas Schewe appeals his sentence, which the district court imposed after

revoking his supervised release. He challenges the special condition forbidding

him from having contact with his son without first receiving approval from his

probation officer.

                                               I.

       In September 2009, Schewe pleaded guilty to one count of conspiracy to

possess with intent to distribute a mixture or substance containing oxycodone. See

21 U.S.C. § 841(a)(1). He was sentenced in February 2010 to thirty-four months

in prison, followed by two years of supervised release. His prison term ended in

March 2012, at which point he was subject to the conditions of his supervised

release.1 Those conditions required, among other things, that Schewe: (1) not

commit a crime; (2) report to his probation officer once a month; and (3) complete

written reports to his probation officer once a month.

       After his release from prison, Schewe lived with his girlfriend, Chrissa

Belasco, and her two children from an earlier relationship. The couple also had a

child of their own, a son, who was an infant at the time of the events that led to the

revocation of Schewe’s supervised release. Those events started in September

2013 when Belasco alerted law enforcement that Schewe “was hurting himself.”

   1
     After Schewe’s prison term ended, jurisdiction over his supervised release was transferred
from the United States District Court for the District of Maine (where he was sentenced) to the
United States District Court for the Middle District of Florida.



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State authorities institutionalized Schewe for a short period of time under Florida’s

Baker Act. See Fla. Stat. § 394.451 et seq. After several days, Schewe was

released with a temporary supply of depression and anxiety medications and a

referral to a mental-health provider.

      On October 8, 2013, about one week after his release, the first incident of

domestic violence occurred. Schewe and Belasco got into an argument, and he

started choking her. When Belasco’s teenage daughter heard the commotion and

entered the room holding Schewe’s infant son, he grabbed the teenager by the arm

in an attempt to take his son from her. Belasco called the police, and the Hernando

County Sheriff’s Office arrested Schewe on charges of: (1) domestic battery by

strangulation, see Fla. Stat. § 784.041(2)(a); and (2) child abuse without causing

great bodily harm, see id. § 827.03(2)(c). The State’s child abuse investigator

concluded that Schewe was not a risk to the family based on statements by the

family members and Schewe’s promise to continue seeking mental-health

treatment. The charges were eventually dropped.

      Though the State did not take any further steps regarding the October 8

incident, the United States Probation Office did. On October 29, 2013, the

probation officer spoke with both Schewe and Belasco about the incident. They

told the officer that Schewe had taken mental-health medications before, and that

those medications had kept him mentally stable. They both believed that Schewe



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could be “fully stable” again soon if he continued his medication regimen and

enrolled in counseling “to address childhood issues.” Based on that interview, the

probation officer asked the district court to modify Schewe’s conditions of

supervision to include a requirement that he seek mental-health treatment. On

October 30, 2013, a psychiatrist evaluated Schewe and diagnosed him as having

bi-polar disorder and post-traumatic stress disorder. The psychiatrist prescribed a

specific set of medications based on that diagnosis, and Schewe later told the

probation officer that they were making him feel better and more stable.

      But Schewe did not stay on his new medications long. He missed his

medication management appointment on November 21, 2013, and did not bring

money to pay for his prescription at his next visit on December 5, 2013.

Schewe’s probation officer met with him at home on December 5 and asked for a

urine sample, but the sample Schewe provided was room temperature, which

indicated that it was not from that day. The officer scheduled an appointment to

take another sample the next day at the probation office, but Schewe did not show.

      On December 14, 2013, another incident of domestic violence occurred.

Belasco and Schewe had an argument over the phone while he was out of the

house. When he came home, he pushed the front door open and immediately put

his hands around Belasco’s neck. Though he did not press so hard that she




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couldn’t breathe, Schewe kept his hands around her neck for about ten minutes,

and all while she was screaming at him to stop hurting her. 2

         Schewe left the apartment before any officers arrived, and the Hernando

County Sherriff’s Office obtained a warrant for his arrest that night. Though he

knew there was a warrant out for him, Schewe fled to New Jersey. The Probation

Office then petitioned the district court, seeking a warrant for Schewe’s arrest and

revocation of his supervised release based on violations of the conditions of his

supervision. The court issued a warrant on December 20, 2013, and Schewe was

arrested in New Jersey on Christmas Day.

         The government charged Schewe with three violations of the conditions of

his supervision: (1) new criminal conduct while on supervision, based on the

December 14 attack, which amounted to Domestic Violence by Strangulation, see

Fla. Stat. § 784.041(2)(a); (2) failure to report, based on Schewe missing his

December 6 appointment at the Probation Office; and (3) failure to submit monthly

reports, based on his not turning in the required written reports to his probation

officer for May through November of 2013. The government agreed to dismiss the

first alleged violation in return for Schewe admitting that he committed the second

and third violations. When the court asked about the dismissal of the first

violation, counsel for the government explained that Belasco had “indicated that

   2
       This description of the events is from what Belasco told the probation officer.



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she was not strangled on December 14, 2013,”3 and the probation officer added

that she had not pursued criminal charges for either incident of domestic violence

because “[s]he [didn’t] want to be the reason for him . . . having more problems

than he already has.”

       After a colloquy with Schewe in which he admitted that he had violated two

of the reporting conditions alleged in the Probation Office’s petition, the district

court turned to the matter of sentencing him. Schewe requested that, after his

prison term ended, his supervised release be transferred to South Carolina so that

he could be close to Belasco (who had moved there following the second incident

of domestic violence). When the court asked what contact Schewe currently had

with Belasco, he said that she accepted his collect calls every day, that “she

actually wants me to stay with her,” and that she had found “schooling and a bunch

of other things” for him in South Carolina. The government disputed that,

explaining that Belasco had told the probation officer that she did “not want to


   3
      The government’s statement that Belasco had “indicated that she was not strangled on
December 14” does not necessarily contradict the probation officer’s report relaying Belasco’s
statement that Schewe had put his hands around her neck on December 14. See supra note 2 and
accompanying text. The government’s characterization appears to be based on Florida law’s
definition of “strangulation,” which involves “imped[ing] the normal breathing or circulation” of
the victim. Fla. Stat. § 784.041(2)(a). Belasco’s statement that she could still breathe while
Schewe had his hands around her neck indicates that the assault did not legally qualify as a
strangling. So the district court could reasonably conclude that the government’s legal
characterization of the December incident was accurate while still accepting the probation
officer’s factual description of that incident. Cf. United States v. Rudisill, 187 F.3d 1260, 1269
(11th Cir. 1999) (applying the clear-error standard to affirm an inference supported by the facts
in the record).



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have any type of relationship with the Defendant other than him being the father of

her child.” When the district court asked the probation officer why Belasco was

accepting the calls, the officer explained that Belasco had said she wanted to help

Schewe straighten himself out so that her child could “have a law abiding and

mentally stable” father.

       The court decided on a prison sentence of six months, followed by a thirty-

month term of supervised release.4 In addition to the ones it had previously

imposed, the court added another special condition requiring Schewe to get

approval from his probation officer before making contact with either Belasco or

their son. Schewe objected to the limit on contact with his son, arguing that it

violated his due process rights and was both procedurally and substantively

unreasonable. The district court responded that the special condition was justified

based on “his history and characteristics.” It cited the two incidents of domestic

violence as evidence that Schewe was “prone to committing acts of violence

against” Belasco and pointed out that he had also assaulted Belasco’s teenage

daughter in October. The court explained that the special condition was

“appropriate” in light of the danger that Schewe posed to Belasco and the children

   4
     Both of the violations to which Schewe admitted were Grade C violations. See United
States Sentencing Guideline § 7B1.1(a)(3)(B). Those two Grade C violations, coupled with his
criminal history category of I, resulted in a guidelines range of 3 to 9 months of imprisonment
and 24 to 30 months of supervised release. See id. § 7B1.4(a). So he was sentenced to a prison
term in the middle of his guidelines range and a term of supervised release that was the
maximum length permitted.



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because “all he has to do is get himself straight [and] convince the Probation

Office.”

       Schewe also objected that the court was basing his sentence on the allegation

of Domestic Violence by Strangulation that the government had agreed to dismiss.

He argued that “there [was] no evidence of strangulation” and submitted pictures

of Belasco’s neck from December 14 that “show[ed] no marks of strangulation.”5

The district court accepted the evidence into the record and implicitly overruled the

objection.

       The court issued its written judgment that same day. The judgment stated:

“The defendant shall not have any contact with Chrissa Belasco and his child

without the approval [of] the probation officer while incarcerated and while on

supervised release.” This is Schewe’s appeal.

                                              II.

       Schewe challenges the district court’s imposition of the special condition

that, during his supervised release, he cannot have contact with his son without

first receiving permission from his probation officer.6 In his view, that special



   5
      Schewe’s objection matched the government’s legal characterization in that he did not deny
that he had put his hands around Belasco’s neck. He asserted only that there was no proof of
strangulation. See supra note 3.
    6
      Schewe’s initial brief also challenges the portion of the district court’s judgment that,
during his imprisonment, barred him from having contact with his son without first receiving
approval from his probation officer. Schewe was released from prison on June 18, 2014, which
the parties agree moots his challenge to that portion of his sentence. They are correct, and we


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condition is a violation of his “constitutionally protected liberty interest in the care,

custody and management of” his son. Maddox v. Stephens, 727 F.3d 1109, 1118–

19 (11th Cir. 2013) (quotation marks omitted). Even when the defendant raises a

constitutional challenge, we review the imposition of a special condition of

supervised release only for an abuse of discretion. See United States v. Zinn, 321

F.3d 1084, 1092 (11th Cir. 2003) (applying the abuse of discretion standard to a

First Amendment challenge to a special condition). Under that standard, we will

reverse only “where the district court applies the wrong law, follows the wrong

procedure, bases its decision on clearly erroneous facts, or commits a clear error in

judgment.” United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005).

       Under 18 U.S.C. § 3583(d), a district court may impose “any condition” on a

defendant’s term of supervised release so long as § 3583(d)’s three criteria are

satisfied. First, the special condition must be “reasonably related” to the

sentencing factors set out in § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D). See

18 U.S.C. § 3583(d)(1). Second, it must “involve[] no greater deprivation of

liberty than is reasonably necessary” to satisfy the sentencing factors set out in

§ 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D). See 18 U.S.C. § 3583(d)(2). Those first

two criteria do not mean that the special condition has to be justified by every one



therefore lack jurisdiction to address that issue. See United States v. Serrapio, 754 F.3d 1312,
1317 (11th Cir. 2014); United States v. Farmer, 923 F.2d 1557, 1568 (11th Cir. 1991).



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of the sentencing factors. See Zinn, 321 F.3d at 1089 (“[I]t is not necessary for a

special condition to be supported by each factor enumerated in § 3553(a).”).

Finally, the special condition must be “consistent with any pertinent policy

statements issued by the Sentencing Commission pursuant to 28 U.S.C.

[§] 994(a).” 18 U.S.C. § 3583(d)(3). 7 We address each statutory criterion in turn.

       We begin with whether the special condition is reasonably related to the

statutory sentencing factors. See id. § 3583(d)(1). The special condition at issue in

the present case reasonably relates to “the history and characteristics of the

defendant,” id. § 3553(a)(1), as well as to “the need . . . to protect the public from

further crimes of the defendant,” id. § 3553(a)(2)(C). The limitation on contact

with his son is based on Schewe’s history of committing acts of domestic violence

when he is not receiving mental-health treatment, which has put his son in danger

in the past (part of Schewe’s history and characteristics) and could put his son at

risk in the future (relevant to protection of the public from further crimes). The

district court explained that it was imposing the special condition based on the two

earlier incidents of domestic violence: Schewe’s assaults on Belasco and her

teenage daughter in October as well as his assault on Belasco in December.

Schewe does not dispute that the two incidents occurred, nor does he question the
   7
      We have also held that the statute should be read together with United States Sentencing
Guideline § 5D1.3. See United States v. Okoko, 365 F.3d 962, 967 n.5 (11th Cir. 2004). None
of the provisions in § 5D1.3 are relevant to the special condition at issue here, so we will not
discuss that guideline any further.



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descriptions of them on which the district court relied. 8 Instead, he argues that his

conduct during those two incidents is irrelevant to his contact with his son because

neither involved an attempt to hurt the infant.

       Schewe’s argument overlooks the fact that his assault on Belasco’s daughter

was committed as part of an attempt to pull his infant son away from her while she

held him. Given that fact, the district court could reasonably conclude that the

special condition was related to the sentencing factors. While Belasco’s daughter

was holding his son, Schewe grabbed her and tried to wrestle the infant from her.

If she had dropped the infant, he could have been seriously injured. Because

Schewe’s history of committing acts of domestic violence had put his son in

danger, there was a reasonable relation between the limitation on contact with his

son and his history and characteristics. See id. § 3553(a)(1); see also United States

v. Bull, 214 F.3d 1275, 1278 (11th Cir. 2000) (holding that a special condition

requiring the defendant to participate in mental-health treatment was reasonably

related to his history and characteristics because of his record of domestic violence,

   8
      Schewe points out that he presented pictures at the hearing in an attempt to prove that he
did not strangle Belasco. But he did not object to or contradict the probation officer’s report that,
during the December incident, he placed his hands around Belasco’s neck, she screamed for ten
minutes for him to let her go, and he frightened Belasco’s daughter to the point that she called
the police. See supra note 5 and accompanying text. Nor did he contest that he assaulted
Belasco and her daughter in October and that his assault on her daughter was an attempt to pull
his infant son away from her. See id. The district court could therefore rely on those
unobjected-to facts to conclude that both incidents of domestic violence occurred as Belasco had
described them to the probation officer. See supra note 3; see also Rudisill, 187 F.3d at 1269
(applying the clear-error standard to affirm an inference supported by the facts in the record).



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which was connected with his mental health). We cannot say that the district court

committed a clear error in judgment when it concluded that the special condition

was reasonably related to the sentencing factors.

      We turn next to whether the special condition involved a deprivation of

Schewe’s liberty that was greater than reasonably necessary to achieve the

objectives of the statutory sentencing factors. See 18 U.S.C. § 3583(d)(2). The

special condition imposes only a minor burden on Schewe’s parental rights. It

permits him to have contact with his son so long as he receives approval from his

probation officer first. In order to obtain that approval, all Schewe has to do is “get

himself straight” — i.e., stay sober and follow his mental-health treatment — and

show his probation officer through his adherence to the conditions of his

supervised release that he is stable enough to be around Belasco and their son.

That burden is not only light, but also well-tailored to the district court’s concern

with Schewe’s history and characteristics, as well as his son’s safety. The district

court relied on evidence indicating that Schewe’s mental-health issues and

substance abuse were directly related to his history of committing acts of domestic

violence. The court did not abuse its discretion by requiring him to commit to, and

continue, his mental-health treatment and sobriety (in the district court’s words to

“get himself straight”) because it is key to preventing further incidents.




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      Furthermore, Schewe’s probation officer is best positioned to monitor his

commitment to his mental-health treatment and his sobriety and to decide when it

would be appropriate and safe for Schewe to have contact with his son. Cf. Zinn,

321 F.3d at 1092 (acknowledging “the vital role probation officers fulfill in

effectuating the district court’s sentence”). We have recognized that making a

special condition subject to the probation officer’s approval is a “relatively

narrowly-tailored condition” that prevents a restriction from being “overly broad.”

Id. (holding that a prohibition on the defendant’s use of the internet without first

receiving approval from the probation officer was “not overly broad”). There was

no clear error in judgment here.

      Finally, we consider whether the special condition is inconsistent with any

policy statements from the Sentencing Commission. See 18 U.S.C. § 3583(d)(3).

It is not. Schewe does not even attempt to identify a policy statement that conflicts

with the special condition, and we are not aware of one that does. Thus, the district

court did not commit a clear error of judgment under § 3583(d)’s last criterion.

      None of Schewe’s contrary arguments are persuasive. Schewe’s first

contention is that, because the special condition implicated his constitutional

rights, the district court erred by not employing heightened factfinding and

tailoring standards to justify the special condition. In making his argument, he

relies exclusively on precedent from other circuits that require special procedures



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or impose heightened scrutiny when a special condition burdens a constitutional

right. See, e.g., United States v. Wolf Child, 699 F.3d 1082, 1089–94 (9th Cir.

2012) (requiring the district court to make “enhanced” findings before imposing a

special condition that implicates the defendant’s constitutional rights); United

States v. Reeves, 591 F.3d 77, 82–83 (2d Cir. 2010) (applying strict scrutiny

analysis to special conditions that burden the defendant’s constitutional rights).

But our own precedents do not require heightened procedures or strict scrutiny.

See, e.g., United States v. Taylor, 338 F.3d 1280, 1284 (11th Cir. 2003) (reviewing

a Fifth Amendment challenge to a special condition and doing so without imposing

special procedural requirements or applying heightened scrutiny); Zinn, 321 F.3d

at 1092–93 (doing the same when reviewing a First Amendment challenge). And

we are bound to follow our precedent. See Smith v. GTE Corp., 236 F.3d 1292,

1300 n.8 (11th Cir. 2001).

      Schewe also contends that the district court’s sentence was not “reasonably

related” to the sentencing factors identified in 18 U.S.C. § 3583(d)(1). He argues

that the special condition was not based on the “nature and circumstances of the

offense” because neither his underlying drug conviction nor his technical

violations of the terms of his supervised release involved abuse of an infant. See

18 U.S.C. § 3553(a)(1). That is true, but a special condition does not need to meet

all of the sentencing factors listed in 18 U.S.C. § 3583(d)(1). See Zinn, 321 F.3d at



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1089. And the district court did not abuse its discretion by emphasizing Schewe’s

history and characteristics and the need to prevent future crimes that could put his

son at risk. See id.

      AFFIRMED.




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