United States v. Wright , 812 F.3d 27 ( 2016 )

United States Court of Appeals
For the First Circuit
Nos. 14-2335
14-2337
UNITED STATES OF AMERICA,
Appellee,
v.
CHRISTOPHER B. WRIGHT,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Torruella, Lynch, and Thompson,
Circuit Judges.
Robert C. Andrews, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.
January 27, 2016
LYNCH, Circuit Judge. This case concerns the reading of
a federal sentencing statute, 18 U.S.C. § 3559(a), in the context
of revocation of a federally supervised release imposed after a
criminal contempt conviction. We conclude that the criminal
contempt here must as a matter of statutory construction be treated
as a Class A felony under 18 U.S.C. § 3559(a). We therefore
respectfully disagree with the Ninth and Eleventh Circuits.
Christopher Wright appeals from an order that revoked
his supervised release on underlying convictions of being a felon
in possession of a firearm and criminal contempt, and imposed a
sentence of thirty months of imprisonment. The district court
found, inter alia, that Wright violated the terms of his release
by breaking state law. In sentencing, the court classified
criminal contempt as a Class A felony, which carries a maximum
five-year (sixty-month) term of imprisonment. See 18 U.S.C.
§ 3583(e)(3). Wright received a sentence of thirty months of
imprisonment.
Wright raises two issues: first, he challenges the
court's determination that he violated state law and, second, he
argues that his maximum imprisonment exposure was two years, on
the theory that criminal contempt is a Class C felony under
18 U.S.C. § 3559(a). We affirm the decision and sentence.
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I.
On review of an appeal of revocation of supervised
release, "we consider the evidence in the light most favorable to
the government," and "we recognize the district court's broad legal
power to determine witness credibility." See United States v.
Portalla, 985 F.2d 621, 622 (1st Cir. 1993).
In 2007, Christopher Wright pleaded guilty to being a
felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1) and
924(a)(2), and criminal contempt, 18 U.S.C. § 401(3), and was
sentenced to concurrent terms of eighty months of imprisonment on
each offense; three and five years of supervised release on the
charges, respectively, to be served concurrently; and a $200 fine.
One condition of his release was that he "not commit another
federal, state, or local crime." Another was that he not use a
controlled substance. In 2012, only a few months after his
supervised release started, Wright was arrested for theft; he
admitted to violating the terms of his release and was sentenced
to twelve months and a day of imprisonment, with twenty-three
months of supervised release for the firearms conviction and
twenty-four months for the criminal contempt conviction.
Once out on release for a second time, Wright used drugs
and engaged in conduct leading to his arrest.1 On July 20, 2014,
1 Wright tested positive for drug use on June 26, July 9,
July 24, and September 3, 2014. In its September 12, 2014,
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Wright contacted Jonathan Trayes to pay for hallucinogenic
mushrooms. Later that day, Justin Corsaro drove Wright in
Corsaro's pickup truck to Trayes's house where several people,
including Trayes's acquaintance, Harry Fay, were present. Fay
testified that he watched from his truck as Trayes approached the
passenger side of Corsaro's vehicle and began speaking with Wright.
After a brief conversation, Wright grabbed Trayes by the arm
through the window and told the driver to "go, go, go." Fay and
Trayes testified that as the vehicle accelerated forward, Wright
dragged Trayes along for at least fifty feet, dangling outside the
window, as Wright punched Trayes in the head. While the car was
in motion, Wright released Trayes, whose leg was then run over by
the vehicle. Trayes was later taken to the hospital for medical
care, including for a wound to his ankle, road-rash, internal
bleeding, and a sprained or broken wrist.
As a result of this incident, Wright was arrested on
September 11, 2014, and charged with aggravated assault under Maine
law. Maine defines aggravated assault, in relevant part, as
follows:
1. A person is guilty of aggravated assault
if he intentionally, knowingly, or recklessly
causes:
A. Serious bodily injury to another; or
petition for revocation, the government charged Wright with a
violation of release based on drug use, which Wright admitted.
Wright does not appeal this basis for revocation.
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B. Bodily injury to another with use of
a dangerous weapon; or
C. Bodily injury to another under
circumstances manifesting extreme
indifference to the value of human life.
. . .
Me. Rev. Stat. Ann. tit. 17-A, § 208 (2014).
After Wright's arrest, the government filed petitions to
revoke his supervised release on two grounds: use of narcotics and
violation of state law. Wright challenged only the latter charge.
At the ensuing proceedings, Trayes and Fay testified, and afterward
the parties submitted additional briefing. On December 16, 2014,
the court heard additional arguments and then ordered revocation,
finding that Wright had violated two prongs of the Maine aggravated
assault statute, as he "recklessly used a dangerous weapon,
[Corsaro's] car," and manifested "extreme indifference to human
life." Turning to sentencing, the court found that Wright's
underlying criminal contempt conviction was a Class A felony under
18 U.S.C. § 3559(a), which carries a maximum revocation
imprisonment sentence of five years, according to 18 U.S.C.
§ 3583(e)(3). The court considered the relevant sentencing factors
and then sentenced Wright to below the five-year maximum,
sentencing him to thirty months of imprisonment. This appeal
followed.
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II.
We review the district court's ultimate decision to
revoke supervised release for abuse of discretion, and the
underlying finding of a violation of supervised release for clear
error. United States v. Oquendo-Rivera, 586 F.3d 63, 66–67 (1st
Cir. 2009); United States v. Whalen, 82 F.3d 528, 532 (1st Cir.
1996). We review the revocation sentence the court imposes for
abuse of discretion, see United States v. Butler-Acevedo, 656 F.3d
97, 99 (1st Cir. 2011), though our review of legal questions is
plenary, United States v. O'Neil, 11 F.3d 292, 294 (1st Cir. 1993).
A. Aggravated Assault under Maine Law
Under 18 U.S.C. § 3583(e)(3), a court may revoke a term
of supervised release if the court "finds by a preponderance of
the evidence that the defendant violated a condition of supervised
release." 18 U.S.C. § 3583(e)(3). Wright challenges the court's
finding that he violated the term of his release that prohibits
commission of a state crime. He argues that he did not commit
aggravated assault under Maine law. We agree with the district
court that Wright's conduct during the July 20, 2014, incident
constituted aggravated assault under § 208(1)(B), the "use of a
dangerous weapon" prong of the Maine statute. See Me. Rev.
Stat. Ann. tit. 17-A, § 208(1) (2014). As a result, we need not
reach whether his conduct also qualifies under the "extreme
indifference" prong, id. § 208(1)(C).
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Under applicable Maine law, criminal liability for
aggravated assault attaches when a person "recklessly" causes
bodily injury with "a dangerous weapon." Id. § 208(1)(B). Maine
courts have recognized that a vehicle can qualify as a dangerous
weapon if the vehicle is "used . . . in a manner capable of
producing death or serious bodily injury." State v. Pierre, 649
A.2d 333, 334 (Me. 1994); see State v. York, 899 A.2d 780, 783
(Me. 2006); Pierre, 649 A.2d at 334–35 & 334 n.3 (discussing Me.
Rev. Stat. Ann. tit. 17-A, § 2(9)(A), defining "use of a dangerous
weapon").
Wright asserts that "the circumstances in this case do
not allow finding that the truck was used as a dangerous weapon,"
as "[n]ot every instance of driving away causes the motor vehicle
to be defined as a weapon under Maine law." Even were that so in
other situations, it is not true here. Here, Wright grabbed a man
through the passenger-side window of a vehicle and instructed the
driver to "go, go, go," leaving the man dangling as the vehicle
sped forward, before the man was released and run over by the
vehicle. While the victim, Trayes, survived without life-
threatening injuries, Wright's use of the vehicle was certainly
"in a manner capable of producing death or serious bodily injury."
Pierre, 649 A.2d at 334. Wright has not even attempted to explain
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how the facts could otherwise be viewed.2 There was no error in
the district court's determination that Wright violated the term
of his release proscribing a violation of state law.
B. Classification of Criminal Contempt
As a result of his violations of supervised release,
Wright was sentenced to thirty months of imprisonment.3 Wright
contends that his underlying conviction for criminal contempt
should be classified as a Class C felony, not a Class A felony,
2 Wright does argue, albeit obliquely, that "[d]riving
away, under the circumstances here," does not support a finding of
the mens rea of "recklessness" because it "does not create the
probable result of death or serious bodily injury as the possible
outcome." This is a misstatement of law. Maine law provides that
"[a] person acts recklessly with respect to a result of the
person's conduct when the person consciously disregards a risk
that the person's conduct will cause such a result." Me. Rev.
Stat. Ann. tit. 17-A, § 35(3)(A); see Stein v. Me. Crim. Justice
Acad., 95 A.3d 612, 618 (Me. 2014). The "disregard of the risk,"
"must involve a gross deviation from the standard of conduct that
a reasonable and prudent person would observe in the same
situation." Me. Rev. Stat. Ann. tit. 17-A, § 35(3)(C). The record
provides more than enough evidence to support the district court's
finding that Wright was subjectively aware of the risk of bodily
injury that he was causing to Trayes -- by holding him through the
passenger-side window and telling the driver to go -- and that
Trayes acted in disregard of the risk. See Stein, 95 A.3d at 619.
3 Wright conceded a violation for use of narcotics and has
not raised a challenge to that violation. He also has not
challenged the classification of the felon-in-possession
conviction. While it is true that the revocation sentence does
not specify an associated release violation, or delineate between
the contempt conviction and the firearms conviction in sentencing
Wright to a thirty-month imprisonment term, because we find that
criminal contempt is a Class A felony, and the sentence imposed
fell below the maximum for the criminal contempt conviction alone,
we need not address the narcotics violation or firearms conviction
separately.
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and that he was incorrectly exposed to a maximum prison term of
five years. In fact, he was sentenced to less than that maximum
prison term. His argument is that, nonetheless, his maximum
exposure was to no more than two years, and his actual sentence of
thirty months, or two and a half years, was more than that.
In revocation sentencing, after considering the
applicable 18 U.S.C. § 3553(a) factors, the court may revoke a
term of supervised release and "require the defendant to serve in
prison all or part of the term of supervised release authorized by
statute for the offense that resulted in such term of supervised
release." 18 U.S.C. § 3583(e)(3). However, maximum imprisonment
exposure is limited as follows:
[A] defendant whose term is revoked under this
paragraph may not be required to serve on any
such revocation more than 5 years in prison if
the offense that resulted in the term of
supervised release is a class A felony, more
than 3 years in prison if such offense is a
class B felony, more than 2 years in prison if
such offense is a class C or D felony, or more
than one year in any other case.
Id. Crimes are classified for purposes of § 3583 pursuant to
18 U.S.C. § 3559(a):
An offense that is not specifically classified
by a letter grade in the section defining it,
is classified if the maximum term of
imprisonment authorized is--
(1) life imprisonment, or if the maximum
penalty is death, as a Class A felony;
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(2) twenty-five years or more, as a Class B
felony;
(3) less than twenty-five years but ten or
more years, as a Class C felony . . . .
Id. § 3559(a). Although 18 U.S.C. § 401 does not specifically
classify criminal contempt, the district court determined that
criminal contempt was a Class A felony.
The proper § 3559(a) classification of a criminal
contempt offense is an issue of first impression in the circuit.
After reviewing the text and history of the criminal contempt
statute, 18 U.S.C. § 401, as well as the decisions of our sister
circuits, we have concluded that there is a plain reading of the
statutes at issue, and that reading binds us. We join the Seventh
Circuit in holding that the statutory maximum for the offense of
criminal contempt, 18 U.S.C. § 401, is life imprisonment, see
United States v. Ashqar, 582 F.3d 819, 825 (7th Cir. 2009). We
take a second step in reasoning and hold that criminal contempt
should be classified as a Class A felony for the purposes of 18
U.S.C. § 3559(a). We explain below.
The text of the criminal contempt statute, 18 U.S.C.
§ 401, does not include a maximum term of imprisonment.4 An
4 In relevant part, 18 U.S.C. § 401 states, "A court of
the United States shall have power to punish by fine or
imprisonment, or both, at its discretion, such contempt of its
authority, as . . . (3) [d]isobedience or resistance to its lawful
writ, process, order, rule, decree, or command." 18 U.S.C. § 401.
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abundance of case law suggests that, in such a situation, the court
has wide discretion in imposing a sentence, including up to life
imprisonment. See, e.g., United States v. Ortiz-García, 665 F.3d
279, 285 (1st Cir. 2011) (joining all sister circuits in finding
that the maximum penalty under 18 U.S.C. § 924(c)(1)(A), which
lacks a statutory maximum, is life imprisonment). The rationale
for this reading was well stated in United States v. Turner, 389
F.3d 111 (4th Cir. 2004): "[T]he sensible rule of statutory
construction [is that] the absence of a specified maximum simply
means that the maximum is life imprisonment. By declining to limit
the penalty, Congress gives maximum discretion to the sentencing
court," id. at 120. The Supreme Court's reading of the contempt
statute's language further supports this view. See Frank v. United
States, 395 U.S. 147, 149 (1969) (explaining that, through the
criminal contempt statute, Congress "has authorized courts to
impose penalties but has not placed any specific limits on their
discretion"). Under the plain reading of the statute, the maximum
penalty for criminal contempt should therefore be life
imprisonment. Under 18 U.S.C. § 3559(a), that makes it a Class A
felony. See 18 U.S.C. § 3559(a) (providing that "[a]n offense
that is not specifically classified by a letter grade in the
section defining it, is classified if the maximum term of
imprisonment authorized is -- (1) life imprisonment, or if the
maximum penalty is death, as a Class A felony").
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We generally do not depart from a statute's plain
language "absent either undeniable textual ambiguity, or some
other extraordinary consideration, such as the prospect of
yielding a patently absurd result." United States v. Fernandez,
722 F.3d 1, 10 (1st Cir. 2013) (quoting Pritzker v. Yari, 42 F.3d
53, 67–68 (1st Cir. 1994)). We are aware a Ninth Circuit panel
has decided that it would be "unreasonable" to conclude that
Congress intended to classify all criminal contempts as Class A
felonies because this would label "all contempts as serious and
all contemnors as felons." United States v. Carpenter, 91 F.3d
1282, 1284 (9th Cir. 1996) (per curiam), overruled in part by
United States v. Broussard, 611 F.3d 1069 (9th Cir. 2010). Under
the Carpenter approach, courts were required to discern what would
be the "most nearly analogous offense" to the particular contempt
at issue, and then classify the contempt based on the applicable
Guidelines sentencing range for the offense. Id. at 1285. The
Ninth Circuit reasoned that "[t]he applicable Guidelines range
[was] directly linked to the severity of the offense and provide[d]
the best analogy to the classification scheme" as it "focuse[d] on
the upper limit of the district judge's discretion, classifying
the crime according to the maximum sentence the judge was
authorized to impose rather than the sentence actually imposed."
Id. After United States v. Booker, 543 U.S. 220, 245 (2005), made
the Guidelines advisory, the Ninth Circuit revised Carpenter such
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that now courts in that circuit look to the most analogous
offense's statutorily defined maximum penalty as the upper limit
on a judge's discretion. See Broussard, 611 F.3d at 1072.
However, we think the concerns raised by the Ninth
Circuit are not enough to warrant disregarding the plain language
of the classification scheme Congress set forth in 18 U.S.C.
§ 3559(a). The Ninth Circuit does not assert that the text of
either the criminal contempt statute or § 3559(a)'s classification
scheme is ambiguous. See Broussard, 611 F.3d at 1071–72 ("Because
criminal contempt has no statutory maximum sentence, 18 U.S.C.
§ 401, under a literal reading of the classification statute, it
would be a Class A felony."). Unlike the Ninth Circuit, however,
we do not find that classifying criminal contempt as a Class A
felony is so unreasonable as to be "patently absurd." See
Fernandez, 722 F.3d at 10. Rather, in agreement with the Supreme
Court, we find it not absurd for Congress to have considered the
broad power of contempt "essential to ensuring that the Judiciary
has a means to vindicate its own authority without complete
dependence on other Branches." Young v. U.S. ex rel. Vuitton et
Fils S.A., 481 U.S. 787, 796 (1987); see Ex Parte Robinson, 86
U.S. (19 Wall.) 505, 510–11 (1873).
Furthermore, we are not persuaded that Congress could
not have intended to label contempt as a Class A felony because of
the seriousness of the "felon" appellation. It is undoubtedly
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true that Congress utilizes the classification under § 3559(a) in
other criminal statutes. See, e.g., 18 U.S.C. § 3013(a)(2)(A)
(requiring higher special assessment fees for felonies than for
misdemeanors); 18 U.S.C. § 3561 ("A defendant who has been found
guilty of an offense may be sentenced to a term of probation unless
-- (1) the offense is a Class A or Class B felony and the defendant
is an individual"). However seemingly harsh those consequences
might be, it is the choice of Congress, and not the courts, to
create sentencing policy. As no argument has been presented, and
we find none, for why the felon appellation is "patently absurd,"
see Fernandez, 722 F.3d at 10, we decline to adopt the approach of
the Ninth Circuit.5 We note, as well, our holding does not reach
and should not be read to suggest that classification of criminal
contempt as a Class A felony for the purposes of § 3559(a) requires
courts to read that classification into discrete statutory
schemes. Such questions are not before us.
We are also not persuaded by the decision of the Eleventh
Circuit to completely forgo classifying criminal contempt and
avoid setting a maximum potential punishment. See United States
5 One judge has suggested that classifying contempt as a
Class A felony raises Eighth Amendment concerns about
proportionality. See United States v. Love, 449 F.3d 1154, 1158
(11th Cir. 2006) (Barkett, J., concurring). But the Eighth
Amendment is concerned with proportionality of punishment imposed,
not mere classification, and so we do not find this rationale to
be persuasive as to the classification question before us.
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v. Cohn, 586 F.3d 844, 845 (11th Cir. 2009) (per curiam). In Cohn,
the court rejected the Ninth Circuit's approach but reasoned that
nonetheless "[u]niform classification of criminal contempt would
be inconsistent with the breadth" of conduct covered by the
statute. Id. at 848. Emphasizing that the Supreme Court has
referred to criminal contempt as an offense "sui generis," and
that criminal contempt is unlike other crimes classified by
§ 3559(a) in that contempt may be charged without indictment and
may be prosecuted by appointed private attorneys, the court held
that criminal contempt is a "sui generis offense" that cannot be
classified under § 3559(a). Id. at 848–49.
We disagree. To begin, we note that the Eleventh Circuit
does not suggest that under the plain reading of the contempt
statute that the maximum sentence for contempt is less than life
imprisonment. And we have already rejected the breadth of conduct
covered by the statute as a reason to override its plain language
or that of 18 U.S.C. § 3559(a). As such, we find no basis to
conclude from the fact that the Supreme Court has referred to an
offense as "sui generis" that Congress could not have intended for
an offense with a maximum term of life imprisonment to be
classified as a Class A felony for § 3559(a) purposes. Congress
may limit the courts' discretion when addressing criminal
contempt, but so far it has not chosen to do so. That contempt
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may be charged and prosecuted somewhat differently from other
crimes is also not reason enough to eschew Congress's scheme.
Moreover and importantly, Congress has not left the
contempt power unchecked. We share the concerns about the
potential for untoward and harsh sentences resulting from a Class
A classification. But we think the answer comes at the next stage
-- at the actual choice of the sentence, after consideration of
all of the relevant sentencing factors, see 18 U.S.C.
§§ 3553(a), 3583(e).6 Here, that is exactly what occurred, as the
district court reviewed the case, noted the maximum of sixty
months, and issued a sentence of half that length.7
For these reasons, we hold that the maximum penalty for
criminal contempt is life imprisonment. As such, 18 U.S.C. § 401is classified as a Class A felony for the purposes of
6 Use of and reference to the Sentencing Guidelines is
itself a check on the imposition of unduly harsh sentences. In
revocation, for example, 18 U.S.C. § 3583(e) directs the sentencing
court to consider several factors, including the Sentencing
Guidelines. See 18 U.S.C. § 3583(e) (directing courts to consider
18 U.S.C. § 3553(a)(4) and (a)(5), which refer to the kinds of
sentences and sentencing ranges established by the Guidelines and
any pertinent policy statement issued by the Sentencing
Commission).
7 Beyond this check, "[t]he answer to those who see in the
contempt power a potential instrument of oppression lies . . . not
in imposition of artificial limitations on the power," but rather,
"in assurance of its careful use and supervision," including
through appellate review. Green v. United States, 356 U.S. 165,
188 (1958), partially overruled on other grounds by Bloom v.
Illinois, 391 U.S. 194 (1968). Congress's many instruments coupled
with the power of the Constitution, provide ample oversight.
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18 U.S.C. § 3559(a). We make no law regarding other statutory
schemes beyond the purview of § 3559(a). Based upon this holding,
we find that there was no error of law and the sentence was
reasonable.
III.
We affirm.
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