Lee Henry pleaded guilty to possession with intent to distribute heroin and contempt of court. The district court sentenced him to 144 months’ imprisonment for the drug trafficking crime and an additional 24 months’ imprisonment for contempt, to be served consecutively. He appeals his conviction for contempt and his sentence for drug trafficking, asserting that the district court erred by convicting and sentencing him in violation of the Fifth Amendment’s prohibition against double jeopardy, failing to conduct the sentencing enhancement colloquy mandated by 21 U.S.C. § 851(b), and the court’s determining that two prior offenses were unrelated for Guidelines purposes. We find no plain error in the district court’s treatment of Henry’s first two claims and hold that the third claim is barred by the law of the case.
I. BACKGROUND
On October 23, 2003, a federal grand jury charged Henry in a four-count indictment with distributing controlled substances in violation of 21 U.S.C. § 841(a)(1). Following his arrest, a magistrate judge released Henry on bail pending trial, subject to certain conditions, among them that he not commit any additional offenses while on pretrial release. 1 Undeterred by the magistrate judge’s admonition, Henry was arrested less than forty-eight hours later, at which point police discovered ten bags of heroin on his person and forty more in his automobile, with an aggregate weight of 1.99 grams. On March 17, 2005, Henry was indicted by a grand jury for possession and possession with the intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1), and, in a separate indictment based on the same underlying conduct, contempt of court, in violation of 18 U.S.C. § 401(3).
On October 7, 2005, Henry pleaded guilty to both indictments at a single hearing, and was duly sentenced for both crimes at a subsequent proceeding. 2 The 144-month sentence for drug trafficking *71 was based, in part, on the district court’s determination that Henry should be classified as a career offender under U.S.S.G. § 4B1.1, predicated upon two prior Connecticut state court convictions for drug trafficking. Although the relevant calculations resulted in a suggested Guidelines range of 188 to 235 months, the district court issued a downward departure after finding that the prior state convictions overrepresented Henry’s criminal history and that Henry suffered from diminished capacity, stemming from a traumatic experience that occurred during childhood.
Following Henry’s timely notices of appeal, his original appellate counsel filed a brief pursuant to
Anders v. California,
II. DISCUSSION
A. Double Jeopardy
Henry argues that his October 7, 2005, dual convictions for contempt of court and drug trafficking are barred by the Fifth Amendment’s prohibition against double jeopardy.
3
Because Henry did not object on such grounds at trial, we review only for plain error.
United States v. Cotton,
The Double Jeopardy Clause of the Fifth Amendment commands that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend V. Generally, this prohibition against double jeopardy “shields a defendant from a second prosecution for the same offense after either conviction or acquittal, and it also prohibits multiple punishments for the same offense.”
Unit
*72
ed States v. Pacheco,
Here, Henry pleaded guilty to both the contempt and the drug trafficking charges at the same proceeding, rendering inapplicable the bar against successive prosecutions. Thus, our analysis is restricted to whether the imposition of multiple punishments violated Henry’s constitutional rights. Not all multiple punishments run afoul of the Double Jeopardy Clause.
Missouri v. Hunter,
Henry was convicted of contempt of court pursuant to 18 U.S.C. § 401, which provides that:
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—
(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;
(2) Misbehavior of any of its officers in their official transactions; [and]
(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.
As a condition of pretrial release, the magistrate judge specifically forbade Henry from violating any federal, state, or local law. By committing the underlying drug offense, Henry clearly flouted the magistrate judge’s order — as he acknowledged by pleading guilty.
As an initial matter, we observe that the nature of the contempt statute arguably presupposes the notion that Congress intended multiple punishments in situations where the breach of a court’s order is likewise a violation of substantive criminal law.
4
Enforcement of a contempt statute vindicates interests wholly separate from those related to punishing drug dealers.
5
See Young v. United States ex rel. Vuitton et Fils,
Henry’s arguments to the contrary are not sufficiently persuasive to establish plain error. First, we reject Henry’s argument that
Dixon
requires reversal. In relevant part, the majority holding of
Dixon
stands for the narrow proposition that an individual may not be prosecuted for an underlying, substantive offense and criminal contempt in temporally separate proceedings.
See
Second, Henry argues that the canons of statutory interpretation militate in favor of a determination that Congress did not intend to impose multiple punishments in cases involving § 401. He notes that, in 18 U.S.C. § 3285, Congress explicitly declared that criminal contempt proceedings instituted pursuant to 18 U.S.C. § 402 do not “bar ... any criminal prosecution for the same act[,]” but that Congress has remained silent concerning § 401. Thus, Henry reasons that the absence of any similar specific authorization with respect to § 401 compels the negative inference that Congress did not intend for multiple punishments to be imposed for contempt of court under § 401 and underlying offenses.
See United States v. Lahey Clinic Hosp., Inc.,
While not bereft of persuasive force, the permissive, negative inference espoused by Henry lacks the thrust necessary to overcome the significant hurdle of plain error review. First, Henry does not even attempt to explain why Congress would wish *74 the courts to implement § 401 and § 402 differently. A brief review of the two sections, moreover, reveals that § 402 deals exclusively with acts that also constitute “criminal offense[s].” Conversely, § 401 is more general in scope, and authorizes contempt proceedings for actions that may not constitute independent violations of law. Thus, we understand why Congress might have decided to make its intent explicit regarding multiple punishments under § 402, but not § 401, without ever intending inconsistent treatment.
At best, Henry has postulated that there is room for reasonable minds to disagree whether double jeopardy concerns arise under these circumstances. He has not, however, met his burden of proving that the district court committed plain error in convicting him of and sentencing him for both drug trafficking and contempt for violating the law after pretrial release.
See United States v. Mastera,
B. Section 851(b)
Next, Henry maintains that the district court erred by failing to conduct the colloquy mandated by 21 U.S.C. § 851(b). Henry reasons that, because he timely objected to the district court’s failure to conduct the colloquy, his substantive objection to his sentence is subject to harmless error review. We disagree. The mere failure to conduct a § 851(b) colloquy is harmless error.
United States v. Romero-Carrion,
Pursuant to § 851(b), a district court must “inquire of the defendant whether he or she contests the validity of any of the prior enhancing convictions in the information.”
Dickerson,
In his sentencing memorandum to the district court, Henry acknowledged that he pleaded guilty to both of the offenses alleged in the Information. Even now, on appeal, he merely argues that the facts described in the Presentence Report (“PSR”) and the Information are not the same facts he admitted to during his plea hearing in Connecticut state court in Docket No. 98-0523584-S. Crucially, Henry does not deny that he was the individual who pleaded guilty in Connecticut state court to the drug-related offense charged in Docket No. 98-0523584-S. Thus, he has quite possibly failed even to implicate the defense of mistaken identity-he certainly has not shown plain error on this basis.
Moreover, he does not assert that the purported difference was material — for example, by suggesting that the actual facts of the crime to which he indisputably pleaded guilty are not subject to the sentencing enhancement imposed by the district court. Henry might well be correct that the PSR and Information should have alleged a slightly different set of facts. Yet, he can hardly expect to obtain relief now, when he failed to raise the issue of an entirely technical difference in the proceedings below.
See Romero-Carrion,
Significantly, we note that the district court provided Henry with many of the substantive protections contemplated by § 851(b).
See, e.g., United States v. Campbell,
C. Related Offenses
Finally, Henry argues that the district court erred by rejecting his contention that the two predicate offenses were “related” under the Sentencing Guidelines, rendering the sentencing enhancement unsustainable.
See
U.S.S.G. § 4A1.2(a)(2). This argument, however, is foreclosed by our April 3, 2007, order granting summary disposition of this ground of appeal.
See United States v. Vigneau,
III. CONCLUSION
For the foregoing reasons, we affirm Henry’s convictions and sentences.
Affirmed.
Notes
. Following a jury trial, Henry was convicted of three of the four counts charged in the indictment, and his convictions were affirmed on appeal.
See United States v. Henry,
. Henry was also sentenced for his original drug-trafficking offense during this proceeding. He was, however, represented by different counsel for that offense — apparently, Henry's original counsel refused to represent him in the matter currently on appeal due to her *71 distaste for his violation of the terms of his pretrial release.
. Henry, in his brief, seemingly attempts to use his double jeopardy argument to bootstrap an ineffective assistance of counsel claim into the instant appeal. We will not consider any such claim, however, as it has been waived for purposes of this appeal.
United States v. Jiminez,
. The legislative history of 18 U.S.C. § 401(3) does not elucidate the matter. We note, however, that Henry's sentence for contempt was enhanced pursuant to 18 U.S.C. § 3147. Section 3147 provides that “[a] person convicted of an offense committed” while on pretrial release shall serve a term of imprisonment "consecutive to any other sentence of imprisonment,” thus lending support to the government's position. 18 U.S.C. § 3147.
. Indeed, at sentencing, the district judge expressed his concern that Henry’s contempt of court would not only tarnish the reputation of the courts, but also harm future defendants by discouraging the courts from releasing them.
. Some limited case law supports this interpretation.
See United States v. Wildergren, C-
94-20452,
. Indeed, Heniy points to our decision in
United States v. Colon-Osorio
for the much more limited proposition that we have not yet definitively resolved this issue adversely to him.
See
. Although the district judge rejected Henry's contention that the two predicate convictions were related, he nevertheless granted a downward departure on the basis that they overrepresented Henry's criminal history. It is pellucid from the record that the district court gave earnest and thoughtful consideration to the nature of Henry's prior convictions.
. We likewise reject the ineffective assistance of counsel claim that Henry has attempted to incorporate into his § 851(b) claim.
See Leahy,