                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-18-2000

United States v. Sicher
Precedential or Non-Precedential:

Docket 00-1862




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Filed December 15, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-1862

UNITED STATES OF AMERICA

v.

SHANNON SICHER,
       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
D.C. Crim. No. 95-cr-0073-8
District Judge: The Honorable Franklin S. VanAntwerpen

Submitted Under Third Circuit LAR 34.1(a)
December 7, 2000

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

(Opinion Filed: December 15, 2000)

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

        Attorney for Appellant



_________________________________________________________________
* The Honorable Robert J. Ward, United States District Judge for the
Southern District of New York, sitting by designation.
       David E. Fritchey, Esquire
       Assistant U.S. Attorney
       615 Chestnut Street
       Suite 1250
       Philadelphia, PA 19106

        Attorney for Appellee

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 pr ocedural
background of this case as necessary to pr ovide 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 r esentenced her
to time served and ten years of supervised r elease, 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.

                                2
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 r eport 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 r ecite 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 numer ous 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 towar d 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 expr essed 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 r evoked
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 pr ohibited her entry
into Lehigh and Northampton counties. She ar gued that the
circumstances of her family's life had changed significantly

                               3
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. Par do, 25 F.3d 1187, 1193 (3d
Cir. 1994). Under either standard, we discern no error.

Imposition of supervised release is gover ned 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 of fense and the
       history and characteristics of the defendant;

       (2) the need for the sentence imposed --

       . . . .

                                4
       (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 ef fective 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 r elease 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 discr etion 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 wer e to return to
the location and associates that shaped her youth, she
would be extremely likely to retur n to a life of crime. Thus,
the special condition disputed here is r elated to "the history

                               5
and characteristics of the defendant," and also serves to
promote rehabilitation consistent withS 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 defendant was a popular
and charismatic drug dealer in southeast Atlanta. Id. The
Cothran court found that the condition was "r easonably
related to the protection of the public" and was also
"reasonably related to Cothran's r ehabilitation." Id. at 752.

Sicher argues, next, that the special condition imposes a
greater deprivation of liberty than is r easonably necessary,
in violation of S 3583(d)(2). She asserts that the special
condition effectively "banishes" her fr om the two counties
comprising the Allentown area, denies her the ability to
care for her mother, and forces her to either abandon her
children or relocate them. She claims that banishment is
generally considered to be illegal, pointing to several cases
in which courts have struck down penalties of banishment.
See United States v. Abushar, 761 F.2d 954 (3d Cir. 1985);
McCreary v. State, 582 So.2d 425 (Miss. 1991); Johnson v.
State, 672 S.W.2d 621 (Tex. App. 1984); State v. Young, 154
N.W.2d 699 (Minn. 1967). These cases ar e easily
distinguished from the case sub judice, however. Most of
them involved unconditional banishment from the entire
country, Abushar, 761 F.2d at 958, or from an entire state.
McCreary, 582 So.2d at 427 (defendant r equired to leave
state and only permitted to retur n twice a year to visit his
children); Young, 154 N.W .2d at 382-83 (defendant required
to "leave Minnesota and never come back her e"). Moreover,
while in Johnson the defendant was r equired to "remain
and reside outside" one particular county, id. 672 S.W.2d
at 622, he "was not to return for any reason." Id. Further,
the Johnson court specifically found that the territorial
condition on defendant's probation did not"have any
relationship to [defendant's] refor mation or rehabilitation."
Id. at 623. It was also unrelated to the nature of his
original offense, which was "unauthorized use of a vehicle."
Id. at 622. Here, Sicher is prohibited from entering two

                               6
counties. That prohibition is not absolute, however,
because she can enter either county with the per mission of
her probation officer. Moreover , the territorial limitation is
clearly intended to promote her rehabilitation by keeping
her away from the influences that would most likely cause
her to engage in further criminal activity. In sum, the
special condition disputed here is not equivalent to the
banishment that was rejected in Abushar and the various
state cases.

Certainly, the territorial limitation will have an impact on
Sicher's family relationships. She will have to decide
whether her children will live with her outside the two
counties, or whether they will continue to live with her
mother in Allentown. If the children live in Allentown,
Sicher's access to them will be limited. It is simply not true,
however, that she will never be able to visit them, or will be
able to see them only if some other person brings them to
her. Rather, she can visit them at any time, with the
approval of her probation officer . Similarly, she will not be
able to live with and take care of her mother in Allentown,
but her mother may be able to live with her outside of the
two counties.1 These minor impositions on her liberty are
no greater than are necessary to pr omote her rehabilitation
by keeping her away from negative, if not wholly disastrous,
influences.

Finally, Sicher argues that the special condition at issue
here is inconsistent with the applicable policy statements of
the Sentencing Commission. In particular, she points to the
policy statements relative to U.S.S.G. S 5D1.3(d) and (e),
which recommend a variety of special conditions that may
be appropriate in certain circumstances. None of these
special conditions includes a prohibition on entering a
particular geographic area, and Sicher contends that the
special condition imposed on her is thus inconsistent with
the policy statements. There is no evidence, however, that
these policy statements are intended to of fer an exhaustive
_________________________________________________________________

1. This Court has no information as to whether Sicher's mother is a
convicted felon, and expresses no opinion as to whether Sicher would
violate the condition of her supervised release that forbids association
with felons if she lived with her mother.

                               7
list of all possible special conditions. Courts have regularly
approved of special conditions not explicitly contained on
this list, so long as those conditions met the general
requirements of S 3553. See, e.g., United States v. Amer,
110 F.3d 873, 882-83 (2d Cir. 1997) (special condition
requiring defendant to effect retur n of children from Egypt);
United States v. Phaneuf, 91 F.3d 255, 263 (1st Cir. 1996)
(special condition requiring defendant to get probation
officer approval before accepting cr edit card or making any
purchase over $100); United States v. Chinske, 978 F.2d
557, 560 (9th Cir. 1992) (special condition r equiring
defendant to submit to search of person, vehicle, and
residence upon request). The fact that the special condition
preventing her from entering two counties is not explicitly
authorized by the policy statements simply does not cause
the condition to be inconsistent with the policy statements.

The decision of the District Court will be affir med.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               8
