### 2000 D e c i sion s O p inion s of the U nit e d

S t a t e s C our t of Appe al s for the Thir d C ir c uit

12-18-2000 

# U nit ed S t a t es v

. S iche r

P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 00-1862

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w

. v i l l a no v a

. e du/thir dc ir c uit_2000

Thi s de c i sion i s br ou gh t t o y ou for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. I t h as be e n a c c e pt e d for inclusion in 2000 D e c i sion s b y a n a uthor i z e d a dmini s tr a t or of V i l l a no v a

U niv e r sit y S choo l of L a

w Di g it al R e posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min

. C a rl s on@l a

w

. v i l l a no v a

. e du

. 

### R e c omme nde d C it a t ion

" U nit e d S t a t e s v

. S iche r " (2000). 2000 D e cisio n s

. P a pe r 251.
h tt p://d i g it alc ommon s .l a

w

. v i l l a no v a

. e du/thir dc ir c uit_2000/251Filed 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. VanAntwer pen

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 Distr ict Judge for the Southern District of New York, sitting by designati on.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 de nial of her motion to set aside a special condition of s upervised release which prevents her from entering Lehigh and Northampton counties, in Pennsylvania, without per mission from her probation officer. Because that special co ndition is related to Sicher's history and characteristics, in volves no greater deprivation of liberty than is necessary, a nd is not inconsistent with the pertinent policy statements i ssued 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 co ntext for the discussion which follows. On May 5, 1995, Siche r pled guilty to one count of conspiracy to distribute coc aine and marijuana in violation of 21 U.S.C. S 846 and one c ount of aiding and abetting the distribution of marijuana n ear 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 2 2, 1998, the District Court granted Sicher's motion to modif y her sentence pursuant to 28 U.S.C. S 2255 and r esenten ced 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 month s 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 eit her of these conditions when they were imposed.

2When the District Court resentenced Sicher , it had before

it substantial evidence concerning the conditions u nder which she was raised and her activities prior to incarceration. This evidence included the r eport o f 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 Si cher was as young as nine years old, her family and friends beg an pushing her towards a life of prostitution, drug us e, 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 ti mes as a juvenile and as an adult. When, as a teenager , s he made an attempt at reform, her associates quickly pulled her back to a life of crime. When she went to prison, h owever, she made strong progress towar d turning her life a round by completing drug treatment and earning high grades i n college classes. In her conversations with Heilbrun , Sicher admitted to experiencing significant anxiety whenev er she was in the Allentown area, and she expr essed a des ire to "get her kids and move away from Allentown."

After spending approximately six months at a commun ity treatment center in Philadelphia, Sicher violated t he terms of her supervised release by associating with a fel on and also by visiting one of her co-defendants in Allent own without permission from her probation officer. In J anuary 1999, she was expelled from the treatment center. A t 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 conditio ns previously imposed. Again, Sicher made no objection to the territorial limitation. She appealed, but that appe al was subsequently dismissed with her consent.

On May 24, 2000, Sicher filed a pro se motion to a mend the conditions of supervised release, asking the Di strict Court to remove the restriction that pr ohibited he r entry into Lehigh and Northampton counties. She ar gued t hat the circumstances of her family's life had changed sign ificantly

3since the restriction was first imposed and she wis hed to

return to her mother's home so that she could care for her mother and her two children. On June 1, 2000, the D istrict
Court denied the motion. It is from this denial tha t 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 (20 00). Because Sicher did not object to the imposition of the
territorial limitation or the refusal to set that c ondition aside, however, the District Court's decision is re viewed for plain error. United States v. Par do, 25 F.3d 1187, 1193 (3d Cir. 1994). Under either standard, we discern no er ror.

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 conditi on 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), an d (a)(2)(D);

(2) involves no greater deprivation of liber ty than is reasonably necessary for the purposes set fo rth 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 c ondition 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 355 3(a) provide that when a district court imposes a senten ce, it
must consider:

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

(2) the need for the sentence imposed --

. . . .

4(B) to afford adequate deterrence to crimina l

conduct;

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

(D) to provide the defendant with needed edu cational or vocational training, medical care, or oth er corrective treatment in the most ef fective manner[.]

Sicher argues that the condition preventing her fro m entering Lehigh and Northampton counties is invalid for three reasons. First, she argues, it is not reasona bly related
to the nature and circumstances of her crime. Secon d, it involves a greater deprivation of liberty than is r easonably necessary. Third, it is inconsistent with the perti nent policy statements of the Sentencing Commission.

With the reference to her first argument, Sicher se ems to be suggesting that a condition of supervised r elea se 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 impo sing sentence. While this Court has not spoken on the is sue, other circuits have determined that despite the pre sence of the word "and," it is not necessary for all of the factors identified in S 3553(a) to be present before a spec ial 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 Stat es v. Abrar, 58 F.3d 43, 46 (2d Cir. 1995) ("a condition may be imposed if it is reasonably related to any one or m ore of the specified factors"); United States v. Johnson, 998 F.2d 696, 698 (9th Cir. 1993) (the language of S 3553(a) offe rs "a list of factors to guide the district court's discr etio n rather than a checklist of requisites, each of which must be fo und before any condition of supervised release may be prescribed"). No circuit has held otherwise.

There was ample evidence that if Sicher wer e to re turn to the location and associates that shaped her youth, she would be extremely likely to retur n to a life of c rime. Thus, the special condition disputed here is r elated to "the history

5and characteristics of the defendant," and also ser ves to

promote rehabilitation consistent withS 3553(a)(2)( D). The Eleventh Circuit has upheld a similar condition tha t had the same effect. See United States v. Cothran, 855 F.2d 749 (11th Cir. 1988). In Cothran, the defendant's proba tion was subject to the condition that he remain outside Ful ton County, Georgia, unless given permission to enter t he county by his probation officer. Id. at 750. Atlant a is located in Fulton County, and the defendant was a p opular and charismatic drug dealer in southeast Atlanta. I d. The
Cothran court found that the condition was "r eason ably related to the protection of the public" and was al so "reasonably related to Cothran's r ehabilitation." Id. at 752.

Sicher argues, next, that the special condition imp oses 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 abili ty to care for her mother, and forces her to either aband on her
children or relocate them. She claims that banishme nt is generally considered to be illegal, pointing to sev eral cases in which courts have struck down penalties of banis hment. See United States v. Abushar, 761 F.2d 954 (3d Cir. 1985); McCreary v. State, 582 So.2d 425 (Miss. 1991); John son v. State, 672 S.W.2d 621 (Tex. App. 1984); State v. Yo ung, 154 N.W.2d 699 (Minn. 1967). These cases ar e easily distinguished from the case sub judice, however. Mo st of
them involved unconditional banishment from the ent ire country, Abushar, 761 F.2d at 958, or from an entir e 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"). Mo reover, while in Johnson the defendant was r equired to "re main 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 terri torial condition on defendant's probation did not"have any relationship to [defendant's] refor mation or rehab ilitation."
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 enterin g two

6counties. That prohibition is not absolute, however
,

because she can enter either county with the per mi ssion of her probation officer. Moreover , the territorial l imitation is clearly intended to promote her rehabilitation by k eeping 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 t o the banishment that was rejected in Abushar and the var ious

state cases.

Certainly, the territorial limitation will have an impact on Sicher's family relationships. She will have to dec ide
whether her children will live with her outside the two counties, or whether they will continue to live wit h her
mother in Allentown. If the children live in Allent own, Sicher's access to them will be limited. It is simp ly 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 t hem to her. Rather, she can visit them at any time, with t he approval of her probation officer . Similarly, she will not be
able to live with and take care of her mother in Al lentown, but her mother may be able to live with her outside of the two counties.1 These minor impositions on her liber ty are no greater than are necessary to pr omote her rehab ilitation by keeping her away from negative, if not wholly di sastrous,
influences.

Finally, Sicher argues that the special condition a t issue here is inconsistent with the applicable policy sta tements of the Sentencing Commission. In particular, she point s to the policy statements relative to U.S.S.G. S 5D1.3(d) a nd (e), which recommend a variety of special conditions tha t may be appropriate in certain circumstances. None of th ese special conditions includes a prohibition on enteri ng a particular geographic area, and Sicher contends tha t the special condition imposed on her is thus inconsiste nt with the policy statements. There is no evidence, howeve r, that these policy statements are intended to of fer an e xhaustive

___________________________________________________ ______________

1. This Court has no information as to whether Sich er's mother is a convicted felon, and expresses no opinion as to whe ther Sicher would violate the condition of her supervised release tha t forbids association
with felons if she lived with her mother.

7list of all possible special conditions. Courts hav e regularly

approved of special conditions not explicitly conta ined on this list, so long as those conditions met the gene ral requirements of S 3553. See, e.g., United States v. Amer, 110 F.3d 873, 882-83 (2d Cir. 1997) (special condit ion requiring defendant to effect retur n of children f rom Egypt); United States v. Phaneuf, 91 F.3d 255, 263 (1st Cir . 1996) (special condition requiring defendant to get proba tion officer approval before accepting cr edit card or m aking any purchase over $100); United States v. Chinske, 978 F.2d 557, 560 (9th Cir. 1992) (special condition r equir ing defendant to submit to search of person, vehicle, a nd residence upon request). The fact that the special condition preventing her from entering two counties is not ex plicitly authorized by the policy statements simply does not cause the condition to be inconsistent with the policy st atements.

The decision of the District Court will be affir me d.

A True Copy:

Teste:

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

8