449 F.3d 1154 | 11th Cir. | 2006
Lead Opinion
Appellant Christopher Love appeals from his sentence imposed after pleading guilty to one count of contempt, in violation of 18 U.S.C. § 401(3). The district court sentenced Love to 45 days’ incarceration followed by five years’ supervised release. Contrary to his representations
I. BACKGROUND
On April 3, 2000, the Federal Trade Commission (FTC) filed a lawsuit in the United States District Court for the Southern District of Florida against Federal Data Service, Inc. (FDS) and others, alleging violation of Section 5 of the Federal Trade Commission Act, 15 U.S.C. § 45, which prohibits “unfair or deceptive acts or practices in or affecting commerce.” On April 11, 2000, the district court issued an ex parte temporary restraining order (TRO) enjoining the defendants “and their successors, assigns, officers, agents, servants, employees, and those other persons in active concert or participation with them who receive actual notice” from making misrepresentations in telemarketing goods and services relating to employment opportunities with the federal government.
On September 16, 2004, the Government filed a one count information charging Love with knowingly and willfully violating the TRO, in violation of 18 U.S.C. § 401 (3).
At sentencing, Love objected to the portion of the Presentence Investigation Report (PSI) stating he was ineligible for probation because contempt is a Class A felony. See 18 U.S.C. § 3561(a)(1) (providing for probation unless the offense is a Class A felony). He did not object, however, to the PSPs determination that the court could impose a term of supervised release of up to five years. The district court continued the sentencing hearing and directed the parties to brief whether probation was available.
When the sentencing hearing resumed, the court ruled Love’s offense was a Class A felony and, therefore, Love was ineligible for probation. Love’s counsel then repeatedly requested the court impose a sentence of time served followed by a term of supervised release. The court sentenced Love to 45 days’ incarceration fol
II. DISCUSSION
Love first argues the court may not impose any term of supervised release for a violation of § 401. He points out § 401 itself does not authorize supervised release; rather, the statute provides the court may punish contempt by “fine or imprisonment, or both.” Although he acknowledges 18 U.S.C. § 3583 authorizes supervised release for most offenses,
Alternatively, Love argues the maximum term of supervised release he could receive is one year. He contends that if contempt can be classified as a felony or a misdemeanor pursuant to the offense classification scheme set forth in 18 U.S.C. § 3559(a),
Love induced or invited the district court to impose a sentence that included a term of supervised release. In his plea agreement and again at the plea colloquy, he expressly acknowledged the court could impose a term of supervised release of up to five years. At his sentencing, he did not object to a sentence including supervised release. To the contrary, Love’s counsel repeatedly requested that in lieu of additional jail time the court sentence Love to time served followed by supervised release, and even suggested the court impose a term of two years’ supervised release.
[COUNSEL]: Your Honor, let me just — I heard the Court say that the — that it either has to be a fine or a jail sentence. I was — I was wondering whether supervised release is an option here....
And I — And I was hoping that maybe the Court could sentence him to time served followed by supervised release, or structure a sentence that way....
THE COURT: So you are suggesting a term of imprisonment of time served. [COUNSEL]: Followed by supervised release with a special condition of six months home confinement or whatever the judge thinks is reasonable under the facts and circumstances of the case.
[COUNSEL]: So I’m asking that in light of what we recommended previously that he be sentenced to some term of supervision. Whether we call it probation or supervised release....
AFFIRMED.
. The FTC alleged the defendants placed classified ads in newspapers around the country, falsely claiming U.S. Postal Service positions and federal wildlife service jobs were available locally and misrepresenting the starting salaries for these positions. When customers called the toll-free number for more information, the defendants told them that for a fee they could receive a list of available postal service or wildlife service jobs, as well as exam information and preparation materials. The defendants falsely told customers they were likely to obtain a job if they purchased the materials and that the fee was refundable if they were unsuccessful.
. 18 U.S.C. § 401 reads, in relevant part:
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, and none other, as ... (3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
. The court calculated an advisory Sentencing Guidelines range of six to twelve months' incarceration, based on a total offense level of 10 and a criminal histoiy category of I. See U.S.S.G. § 2J1.2 (2000) (setting forth Guidelines for obstruction of justice).
. 18 U.S.C. § 3583(a) reads, in pertinent part: "The court, in imposing a sentence to a term of imprisonment for a felony or a misdemean- or, may include as a part of the sentence a requirement that the defendant be placed on a term of supervised release after imprisonment. ...”
. 18 U.S.C. § 3559(a) reads, in pertinent part: 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;
(6) one year or less but more than six months, as a Class A misdemeanor;
(7) six months or less but more than thirty days, as a Class B misdemeanor....
.18 U.S.C. § 3583(b) provides, in relevant part:
Except as otherwise provided, the authorized terms of supervised release are—
(1) for a Class A or B felony, not more than five years;
*1157 (3) for a Class E felony, or for a misdemeanor (other than a petty offense), not more than one year.
. We count at least five instances during sentencing where Love’s counsel requested supervised release:
Concurrence Opinion
specially concurring:
I agree that Love is precluded from contesting his five-year term of supervised release because he invited the district court to impose that part of his sentence. Nonetheless, the present appeal draws our attention to serious confusion about the proper classification of criminal contempt for sentencing purposes. Thus I would address the question,
*1157 [COUNSEL]: ... I am thinking about another way to resolve the dilemma, your Honor, is what I’m saying.
THE COURT: All right.
[COUNSEL]: We sentence[] him to time served and impose two years of supervised release....
Under the government’s interpretation, the relatively petty offense that resulted in Love’s contempt conviction — petty enough, at least, for Love to have received a mere 45-day prison sentence — could have been punished with life imprisonment if the trial court, in its discretion, wished to impose that penalty. Such an absurd sentence would raise serious proportionality concerns under the Constitution. See Atkins v. Virginia, 536 U.S. 304, 311, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (“it is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense.”) (citing Weems v. United States, 217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910)). There is no reason why Title 18 must be read to permit such a constitutionally suspect result: “where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.” Jones v. United States, 529 U.S. 848, 857, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000). Similarly, there is no reason why Title 18 must be read to permit results that are, if not unconstitutional under the Eighth Amendment, patently absurd. See In re International Administrative Services, Inc., 408 F.3d 689, 707-08 (11th Cir.2005) (interpreting a federal statute so as to avoid an “absurd result”); see also Regions Bank v. Provident Bank, Inc., 345 F.3d 1267, 1276 (“the Supreme Court has repeatedly held that ‘[i]f possible, [a court] should avoid construing [a] statute in a way that produces ... absurd results.’ ”) (citing Dewsnup v. Timm, 502 U.S. 410, 427, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992)).
In United States v. Carpenter, the Ninth Circuit successfully avoided a constitutionally feeble or absurd reading of the criminal contempt statute. Like the instant case, Carpenter involved a defendant who appealed his sentence for criminal contempt, consisting of light incarceration and several years suspended release. Like Love, defendant Carpenter argued that contempt should be classified based upon the sentence actually imposed; because Carpenter’s contempt violation would have been a “petty” offense under this approach, he argued, like Love, that the court was not authorized to impose supervised release at all. Id. at 1283. The government advanced in Carpenter the same argument it raises before this
The Carpenter Court rejected both positions, however, holding that criminal contempt should be classified for sentencing according to the applicable Guidelines range for the most nearly analogous offense. Id. at 1285 (holding that where the Guidelines range was six to 12 months for the underlying offense, the contempt should be classified as a “Class A misdemeanor”). With regard to the government’s argument, the Court said that “[i]t would be unreasonable to conclude that by authorizing an open-ended range of punishments to enable courts to address even the most egregious contempts appropriately, Congress meant to brand all contempts as serious and all contemnors as felons.” Carpenter, 91 F.3d at 1284 (citing Frank v. United States, 395 U.S. 147, 149, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969) (failure to establish maximum sentence for contempt may reflect Congress’s “recognition of the scope of criminal contempt”) and U.S.S.G. § 2J1.1 comment n. 1 (rejecting any guideline range for criminal contempt “[b]e-cause misconduct constituting contempt varies significantly.”)).
Although it is true that Carpenter was decided when the Sentencing Guidelines were mandatory, the logic of the decision is not impaired by the Guidelines’ recent fate. As the Ninth Circuit explained, the Guideline ranges are a useful and reasonable basis for classifying particular instances of criminal contempt because they are “directly linked to the severity of the offense[, ...] providing] the best analogy to the classification scheme set out in 18 U.S.C. § 3559.” Id. at 1285. That is to say, the Carpenter approach avoids the absurd result of branding all criminal contempts Class A felonies, while simultaneously achieving, or at least approximating, the intent of Congress. Thus Carpenter's reasoning presumably could survive even in the absence of the Guidelines themselves; in such case, a sentencing court would look to the most closely analogous offense for which federal law mandates or recommends a maximum sentence.
I observe that this proposed resolution precisely mirrors the joint recommendation contained in Love’s plea agreement but rejected by the district court. In that agreement, the United States and the defendant urged the court to formulate the “sentence to be imposed” by reference to the Sentencing Guideline’s determination of the base offense level for “the most analogous offense.”
. Although this Court normally declines to address the existence of error where an alleged error has been invited, it is not compelled to do so. See, e.g., Glassroth v. Moore, 335 F.3d 1282, 1289-90 (11th Cir.2003) (adopting Tenth Circuit’s holding on eviden-tiary claim but concluding "in any event” that alleged error was invited); Ford ex rel. Estate of Ford v. Garcia, 289 F.3d 1283, 1295 (11th Cir.2002) ("declining] to review for reversible error” where error was invited) (emphasis added); United States v. Hansen, 262 F.3d 1217, 1248 (11th Cir.2001) ("Under the invited error doctrine, we will generally not review an error induced or invited by a party ... ”) (emphasis added).
