United States v. Nicholas Schewe ( 2015 )

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[DO NOT PUBLISH]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.
2
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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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