IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-51491

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

BRIANE NICOLE WOODS

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas, Midland/Odessa

Before KING, HIGGINBOTHAM, and WIENER, Circuit Judges.

PER CURIAM:

Defendant-appellant Briane Nicole Woods appeals the district court’s

imposition of a discretionary condition of supervised release forbidding her from

residing with any person to whom she is not ceremonially married or related by

blood. We conclude that the condition is overbroad and involves a greater

deprivation of liberty than is reasonably necessary to achieve the purposes of

supervised release. Thus, the district court abused its discretion by imposing a

supervised release condition that fails to meet a requirement set forth in 18

U.S.C. § 3583(d). We vacate the condition of supervised release, affirm the

remainder of the sentence, and remand.

United States Court of Appeals

Fifth Circuit

F I L E D

October 28, 2008

Charles R. Fulbruge III

Clerk
No. 07-51491

1 The district court articulated three versions of the residency condition—two oral and

one written. The parties rely on the first oral version, which is consistent in all material

respects with the written one, as the relevant condition. We do the same.

2

I. FACTUAL AND PROCEDURAL BACKGROUND

Woods appeals the district court’s imposition of a discretionary condition

of supervised release prohibiting her from residing “with anyone that[she is] not

ceremonially married to or related to by blood during the term of [her]

supervised release” (the “residency condition”). On August 7, 2007, a jury found

Woods guilty of two counts of distribution and possession with intent to

distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and one count of

engaging in conduct causing bodily injury to another with intent to retaliate, in

violation of 18 U.S.C. § 1513(b)(2). Woods does not dispute her conviction.

Woods’s sole argument on appeal challenges the district court’s authority

to impose the residency condition. On December 13, 2007, the district court

sentenced Woods to three concurrentterms of 120 months of imprisonment. The

court also sentenced Woods to concurrent supervised release terms of five years

on Count I and three years each on Counts II and IV. The court imposed many

conditions of supervised release. Among these conditions, the court ordered

Woods to refrain from associating with anyone who is a convicted felon or anyone

engaged in criminal activity. The court also mandated that Woods have no

contact with co-defendant Laquisha Powell or with Billy Beck, Carol Lawrence,

or Bobby Washington, the other individuals involved in Woods’s underlying

criminal activity. Finally, the district court imposed the residency condition.1

At sentencing, Woods’s attorney objected to the residency condition on the

basis that it deprived Woods of her constitutional right to liberty. Responding

to the objection, the district court mentioned that the 18 U.S.C. § 3553(a)

sentencing factors apply and that the purpose of supervised release is to help
No. 07-51491

2 Section 3583(d) provides:

The 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.

3

people to reintegrate into society. It then justified the residency condition on the

ground that Woods needs stability in her home. It recited a number of

destabilizing factors in Woods’s life that ostensibly led to her criminal behavior,

including her lack of a father figure, her mother’s decision to have two children

with a man other than Woods’s father,the detrimental influence of Woods’s peer

group, Woods’s decision notto marry the father of her one-year-old child and her

unborn baby, his failure to provide support, her prolonged drug and alcohol

abuse, and her lack of steady employment. Notably, at the time Woods was

arrested in March 2007, she was living with her mother.

Woods timely appealed. We have jurisdiction under 28 U.S.C. § 1291.

II. DISCUSSION

When the defendant objects at sentencing to the district court’s imposition

of a discretionary condition of supervised release, we review for abuse of

discretion. United States v. Ferguson, 369 F.3d 847, 852–53 (5th Cir. 2004);

United States v. Paul, 274 F.3d 155, 164–65 (5th Cir. 2001). A district court

abuses its discretion when it imposes a discretionary supervised release

condition that deviates from the requirements defined in § 3583(d).

Section 3583(d) grants the district court wide discretion to impose any

supervised release condition thatit considers to be appropriate.2 That discretion
No. 07-51491

4

is circumscribed by three specific requirements that the condition must meet.

The first requirement is that the condition must be “reasonably related to the

factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D).”

§ 3583(d)(1). These factors include: “the nature and circumstances of the offense

and the history and characteristics of the defendant,” § 3553(a)(1); the need “to

afford adequate deterrence to criminal conduct,” § 3553(a)(2)(B); the need “to

protect the public from further crimes ofthe defendant,” § 3553(a)(2)(C); and the

need “to provide the defendant with needed educational or vocational training,

medical care, or other correctional treatment in the most effective manner,”

§ 3553(a)(2)(D). Even if the condition is reasonably related to those sentencing

factors, under the second requirement, it “cannot involve a greater deprivation

of liberty than is reasonably necessary to achieve the latter three statutory

goals.” Paul, 274 F.3d at 165 (citing § 3583(d)(2)). Finally, the third

requirement mandates thatthe condition must be “consistent with any pertinent

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

[§] 994(a).” § 3583(d)(3).

Under these requirements, courts of appeals have affirmed discretionary

conditions restricting a defendant’s intimate associations where the district

court appropriately defined the prohibited association and articulated a direct

connection between the condition and a sentencing goal. See United States v.

Smith, 436F.3d 307, 311 (1st Cir. 2006) (affirming condition directing defendant

to stay away from minor daughter because, inter alia, it served to protect public

safety from defendant’s agitated entries into schools in search of his daughter);

United States v. Rodriquez, 178 F. App’x 152, 158–59 (3d Cir. 2006)

(unpublished) (affirming condition prohibiting defendant from having contact

with her husband because district court found that defendant committed crimes

at her husband’s behest); United States v. Brandenburg, 157 F. App’x 875,

878–80 (6th Cir. 2005) (unpublished) (affirming condition prohibiting defendant
No. 07-51491

3 The condition in Torres provided: “The defendant shall not reside with anyone who

is not a blood relative, or that the defendant is not legally married to whether it be a civil or

religious ceremony during the term of supervision.” See Torres, 281 F. App’x at 403.

5

from co-habitating with any female because defendant “has a history of abusing

women with whom he lives” and narrower, previously imposed condition proved

“inadequate to prevent the defendant from committing domestic violence”);

United States v. Bortels, 962 F.2d 558, 559–60 (6th Cir. 1992) (affirming

condition that defendant not associate with her fiancé because defendant“would

not be in jail but for her association with [him]”; “her rehabilitation would be

aided if she avoided future contact with [him]”; and she “already risked injuring

innocent bystanders . . . in order to protect [him] from law enforcement

authorities”). But cf. United States v. Jacques, 321 F.3d 255, 266 (2d Cir. 2003)

(suggesting modification of standard supervised release condition prohibiting

defendant’s association with her common-law husband); United States v. Smith,

972 F.2d 960, 961–62 (8th Cir. 1992) (vacating condition prohibiting defendant

from fathering additional children other than with his wife unless he

demonstrated his ability to provide support to all his children). Thus, the

district court may impose a condition restricting the defendant’s intimate

associations that involves no greater deprivation of liberty than is reasonably

necessary to achieve the identified purposes of supervised release.

Nonetheless,the few courts to consider a supervised release condition that

broadly restricts the defendant’s right to reside with classes of people (as

distinguished from individuals or groups with whom the defendant has a

relevant history) have concluded thatit violated the defendant’s rights. On June

16, 2008, this court modified a sentence by striking the exact same condition as

the district court applied here. See United States v. Torres, 281 F. App’x 394,

403 (5th Cir. 2008) (unpublished) (per curiam).3 Torres was convicted and

sentenced for aiding and abetting possession with intentto distribute heroin and
No. 07-51491

6

conspiracy to possess with intent to distribute heroin. Id. at 398. This court

held that the residency condition was “overbroad and not reasonably related to

Torres’s offense, the need to protect the pubic, or Torres’s rehabilitation.” Id. at

403. The court reasoned that “if read literally, it would prohibit Torres from

living with a step-brother.” Id. Thus, the court struck the condition and

remanded to allow the district court to impose an alternative condition. See also

United States v. Worthington, No. 96-1597, 1998 WL 279379 (6th Cir. May 21,

1998) (unpublished) (rejecting condition preventing defendant from “residing

with an unrelated, unmarried female” because reasonableness of its relation to

sentencing goals was unclear and forbidding this long-term living arrangement

was poorly designed to accomplish goal of preventing solicitation of prostitutes).

Because Torres is not precedential, it is not binding on this court, see, e.g.,

United States v. Simkanin, 420 F.3d 397, 418 n.22 (5th Cir. 2005); nonetheless,

we find it highly persuasive.

Here, the district court abused its discretion because the residency

condition does not meet the standards set forth in § 3583(d). The government

does not contest that Woods has a liberty interest in the intimate details of her

personal life, including with whom she resides, but that concession is not

outcome determinative. It is axiomatic that the infringement of constitutional

liberties occurs concomitantly with conviction of a crime, see, e.g., Griffin v.

Wisconsin, 483 U.S. 868, 874 (1987) (citing Morrissey v. Brewer, 408 U.S. 471,

481 (1972)), and many conditions of supervised release therefore permissibly

infringe liberty interests. See § 3583(d) (listing standard conditions that

inherently infringe defendant’s liberty and requiring that other conditions

involve “no greater deprivation of liberty than is reasonably necessary”); see also

United States v. Stafford, 983 F.2d 25, 28 (5th Cir. 1993) (holding that condition

is “not necessarily invalidated merely because it impairs” enjoyment of

constitutional rights). In this case, the district court implied that the lack of
No. 07-51491

4 See § 3583(e)(2) (permitting district courts to modify or add conditions during term

of supervised release); Fed. R. Crim. P. 32.1(c); United States v. Emerson, 231 F. App’x 349,

353 (5th Cir. 2007) (per curiam) (unpublished) (“Section 3583(e)(2) vests a district court, after

considering the factors set forth in § 3553(a), with broad discretion to modify a defendant’s

conditions of supervised release by adding special conditions at any time prior to the expiration

or termination of the term of supervised release.”).

7

stability in Woods’s home life contributed to her criminal conduct, and we agree

that Woods’s history is a relevant consideration and that the district court may

impose limitations on a convict’s living arrangements to ensure that she avoids

recidivism.

Yet,this particular residency condition is overbroad and involves a greater

deprivation of Woods’s liberty than is reasonably necessary to achieve sentencing

purposes. See § 3583(d)(2) (cross-referencing the sentencing purposes in

§ 3553(a)(2)(B), (a)(2)(C) & (a)(2)(D)). Although Woods lived with her mother

when she committed the crimes (and could, under the residency condition, live

with her while on supervised release), the blanket condition forbids her from

living with nonrelatives, including potentially stabilizing individuals such as a

close friend or a permanent roommate who could help her to bear the costs of her

living arrangements and to care for her children. In addition, less intrusive

options serve the same purpose. For example, the standard conditions of

supervised release require Woods to notify her probation officer of any change

in residence at least ten days in advance, and if the probation officer determines

that Woods intends to reside with someone who will foster recidivism, then the

probation officer can petition the courtfor the imposition of a supervised release

condition specific to the particular threat and consistent with § 3583’s

requirements.4 Furthermore, the district court prohibited Woods from any

contact with the specific individuals who were involved in her criminal activities

and all other felons, limiting Woods’s potential for recidivism based on risks

known at this time. Thus, the district court abused its discretion by imposing

a condition of supervised release that broadly prohibits her from living with
No. 07-51491

8

anyone to whom she is not married or related by blood and thus involves a

greater deprivation of liberty than is reasonably necessary for the relevant

sentencing purposes, in violation of § 3583(d).

III. CONCLUSION

For the above reasons, we VACATE in Woods’s sentence all oral and

written permutations of the following supervised release condition: “You shall

not reside with anyone that you’re not ceremonially married to or related to by

blood during the term of your supervised release.” We AFFIRM the remainder

of her sentence and REMAND the case to the district court to allow it an

opportunity to fashion an alternative supervised release condition, if it chooses,

not inconsistent with this opinion.