Classification of Contempt Citations for Sentencing Purposes Addressed

limit of the district judge's discretion, classifying the crime booker and its progeny. the basic rule of carpenter remains year. 18 u.s.c. � 3583(b)(3), (e)(3). the government con- for publication classification statute, it would be a class a felony, 18 u.s.c. limit on a district judge's discretion. we adapt carpenter's other terms of broussard's sentence. see, e.g., united states a class a felony is five years. 18 u.s.c. � 3583(e)(3). the in place: the severity of contempt violations for purposes of on remand, the district judge determined that broussard's imprisonment and one year of supervised release on the basis broussard served his eighteen months and began a third defendant-appellant. opinion therefore, "criminal contempt should be classified for sen- counsel united states court of appeals 10249united states v. broussard contempt conviction was for a class a felony. the total maxi- they are inconsistent with rita, gall, kimbrough, or this opin- revocation of supervised release when the underlying offense analysis because assaulting a federal officer is also a class d felony, 2. broussard also argues that the district judge abused her treated broussard's contempt conviction as a class d felony. to "escape" under 18 u.s.c. � 751, which for broussard escape is five years, 18 u.s.c. � 751, which makes it a class � 3583(b). the district judge was therefore required to clas- appeal from the united states district court the two. 18 u.s.c. � 3583(b), (e)(3), (h). the maximum pos- years in prison. 18 u.s.c. � 3583(b)(2), (e)(3), (h). thus, the single sentencing issue raised in pimentel's prior appeal, the discretion by prohibiting him from using alcohol. broussard v. pimentel, 34 f.3d 799, 800 (9th cir. 1994) ("in light of this sible sentence for violating the terms of supervised release that single issue, the district judge was powerless to alter the either imprisonment, supervised release or a combination of tempt conviction as though its maximum sentence were 37 is a class d felony is three years, with up to two of those filed july 14, 2010 broussard appealed the sentence, arguing that his contempt overruled." miller v. gammie, 335 f.3d 889, 900 (9th cir. vised release terms--assaulting a federal officer and contempt apr. 14, 2009) (mem.). 10245 plaintiff-appellee, d.c. no. *the panel unanimously finds this case suitable for decision without 10251united states v. broussard appellee. district judge's discretion." id. our holding adapts carpen- and eventually pleaded guilty to assaulting a federal officer opinion by chief judge kozinski terms of supervised release. the conditions of supervised the first instance, whether broussard's prior contempt convic- the district judge here analogized broussard's conviction ing to escape from the halfway house. neither party disputes opinion months, which would make it a class e felony. 18 u.s.c. an important consideration, but "the maximum sentence the en banc has held that "[p]rior cases are overruled to the extent 18 u.s.c. � 3559(a) turns on the most analogous underlying nies being the least. for example, crimes with a maximum sentence, and exceeded her authority by imposing two years 10253united states v. broussard letter grade in the section defining it, is classified if the maxi- terms by going to san francisco, failing to report a police judge sentenced broussard to two years in prison and three this case arises from deante broussard's third supervised judge [i]s authorized to impose," carpenter, 91 f.3d at 1285 the supervised release statute caps the overall length of the according to the maximum sentence the judge was authorized for the northern district of california remand order directed the district court to "determine, in the offense. carpenter, 91 f.3d at 1285. but judges are no longer but the legal landscape has shifted since carpenter. its fac- at an appropriate sentence."). ment, or if the maximum penalty is death, as a class a gang ties. francisco, california, for the defendant-appellant. contempt conviction was most analogous to "escape" under supervised release was that he "refrain from the use of alco- district court was without authority to reexamine any other the halfway house, he tried to escape. an alert atf agent saw mhp-1deante broussard, mum sentence for revocation of supervised release following * * * appeals yet again. previously-imposed ban on consuming alcohol. broussard soned that the "applicable guidelines range is directly linked broussard argues that the judge was required to treat his con- express rationale to this new reality. round of supervised release. a few weeks later, he violated its sify the prior convictions supporting broussard's prior super- � 3559. section 3559 classifies felonies by their maximum release violation. but the story starts much earlier, when he v. 3:06-cr-00544- felony, but argued that it was a class d felony, for which the could have raised this issue in his first appeal, but did not. our first instance, whether broussard's prior contempt conviction ately, congress meant to brand all contempts as serious and maximum sentence is three years, with up to two of those in then imposed. we consider how convictions for contempt of court are sentence, with a felonies being the most serious and e felo- mum term of imprisonment authorized is . . . life imprison- right. in determining the class of felony for purposes of 18 and m. margaret mckeown, circuit judges. oral argument. see fed. r. app. p. 34(a)(2). at a halfway house in oakland. the day broussard arrived at and contempt of court for violating supervised release. the sentencing issues on remand."). prison. id. � 3583(b)(2), (e)(3). after affirming "the two year tion should be considered a class d felony, as the government authorizing an open-ended range of punishments to enable � 3559(a)(5). if broussard were right, then the district judge judge's discretion is what matters--to a regime in which the month prison terms, followed by two concurrent three-year offenses, consisting of two years in prison and one year of (emphasis omitted), is now the statutory maximum, see, e.g., contempt convictions. in united states v. carpenter we sentence following his first appeal. see p. 10249 supra. northern district of california, san francisco, california; judge did not exceed her authority by imposing two years of under 18 u.s.c. � 111, which the parties agree was a class d mum sentence, 18 u.s.c. � 401, under a literal reading of the this analogy. finding escape to be a class d felony, the judge trict of california, san francisco, california; and owen p. revoked his supervised release. at issue is the punishment she of court--according to the scheme set out in 18 u.s.c. contact and failing to report that he'd obtained a car. brous- kozinski, chief judge: sentence authorized by the statute of conviction is the upper barbara j. valliere, chief, appellate section, northern dis- 10248 united states v. broussard marilyn h. patel, senior district judge, presiding tencing purposes according to the applicable guidelines range ter's overarching principle--that the upper end of the district san francisco, california was on the basis of carpenter that we remanded broussard's � 3559(a). from the mandatory-guidelines era, because the court sitting has been eroded by booker, 543 u.s. at 245 (rendering the of intervening supreme court and en banc opinions, "a three- because contempt of court has no statutory maximum, 18 would only have been authorized to impose a one-year total before: alex kozinski, chief judge, david r. thompson felony--we remanded "for the district judge to determine, in the classification scheme" because it "focuses on the upper felony."). we've rejected that literal approach to classifying guidelines maximum. the statutory maximum sentence for supervised release. finally, the judge refused to alter the district judge sentenced him to two concurrent eighteen- � 3553(a) factors that are to be taken into account in arriving � 3559(a) ("an offense that is not specifically classified by a conviction should have been classified as a class e felony, years but more than one year are class e felonies. id. of imprisonment and one year of supervised release on that [1] 1. because criminal contempt has no statutory maxi- states v. booker, 543 u.s. 220 (2005). classified for sentencing purposes in the wake of united 10247united states v. broussard 18 u.s.c. � 751, because he committed the contempt by try- count. 18 u.s.c. � 3583(b)(3), (e)(3), (h). whereas crimes with a maximum sentence of less than five to the severity of the offense and provides the best analogy to reject the prior opinion of this court as having been effectively which would have capped his maximum total sentence at one briefed by joseph p. russoniello, united states attorney, carty, 520 f.3d at 991 ("while the guidelines are to be sard pleaded guilty to the violations and the district judge 08-10128, slip op. at 2. because our remand was limited to revise the term of supervised release accordingly." united 10250 united states v. broussard the district judge imposed identical concurrent terms for both 10252 united states v. broussard united states of america, no. 09-10331 instead, the statutory maximum is now the "upper limit of the release required him to reside in twenty-four-hour lockdown of california, san francisco, california, for the plaintiff- term of imprisonment"--presumably on the basis of brous- u.s.c. � 3559(a) we look to the statutory maximum, not the of broussard's prior contempt conviction. all contemnors as felons." 91 f.3d 1282, 1284 (9th cir. 1996). courts to address even the most egregious contempts appropri- hol." guidelines advisory), and united states v. carty, 520 f.3d and a ban on visiting san francisco, where broussard had briefed by ethan a. balogh, coleman & balogh llp, san d felony, 18 u.s.c. � 3559(a)(4). the maximum sentence for should be considered" a class d or e felony. broussard, no. sets the upper limit on the district judge's discretion. tual premise that the guidelines range sets the "upper limit of clear evidence that the scope of our remand was limited to the release included a prohibition on "excessive use of alcohol" statute of conviction, rather than the sentencing guidelines, for the most nearly analogous offense." id. at 1285. we rea- submitted february 9, 2010* was released following his first supervised release violation. turns on the seriousness of the underlying offense. 18 u.s.c. sentence that can be imposed following revocation of super- sard's other prior conviction, assaulting a federal officer the sentencing guidelines are now advisory. the maximum the district judge's discretion," carpenter, 91 f.3d at 1285, affirmed. years of supervised release. one of broussard's conditions of explained that "[i]t would be unreasonable to conclude that by limited to the maximum guidelines sentence for that offense; to impose rather than the sentence actually imposed." id. it for the ninth circuit one of the terms of broussard's second round of supervised [2] we therefore must revise the carpenter rule in light of states v. broussard, no. 08-10128, slip op. at 1-2 (9th cir. contends, or a class e felony, as broussard contends, and to [3] but, for the reasons explained above, broussard is not ceded that broussard's contempt conviction wasn't a class a sentence of life imprisonment or death are class a felonies, vised release but gives the district judge discretion to impose we are required to follow circuit precedent, but in the face facts 2003) (en banc). this is particularly true for sentencing cases respectfully considered, they are one factor among the 984, 991 n.5 (9th cir. 2008) (en banc). the guidelines remain yielded a guidelines range of 30-37 months. accordingly, martikan, assistant united states attorney, northern district broussard jump into a car in front of the halfway house and themselves bound by the intervening higher authority and u.s.c. � 401, the district judge held that broussard's prior ion." carty, 520 f.3d at 991 n.5. judge panel of this court and district courts should consider blocked the car's path. broussard was subdued after a scuffle