2000 Decisions

Opinions of the United

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Precedential or Non-Precedential: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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Recommended Citation

"United States v. Sicher" (2000). 2000 Decisions. Paper 251.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/251
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. 

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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 

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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 -- 

 . . . . 

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 (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 

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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. 

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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 

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