U.S. v. Love

• Decision Date: 18 May 2006
• Docket Number: No. 05-11141.,05-11141.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Christopher LOVE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1154

449 F.3d 1154

UNITED STATES of America, Plaintiff-Appellee, v. Christopher LOVE, Defendant-Appellant.

No. 05-11141.

United States Court of Appeals, Eleventh Circuit.

May 18, 2006.

Kathleen M. Williams, Federal Public Defender, Miami, FL, Daryl E. Wilcox, Asst. Federal Public Defender, Ft. Lauderdale, FL, for Defendant-Appellant.

Gregory A. Ashe, U.S. Federal Trade Com'n, Peter B. Loewenberg, U.S. Dept. of Justice, Fraud Sec., Crim. Div., Ellen R. Meltzer, U.S. Dept. of Justice, Washington, DC, Anne R. Schultz, Asst. U.S. Atty., Miami, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BLACK, BARKETT and COX, Circuit Judges.

PER CURIAM:

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 before the district court and for the first time on appeal, Love argues the district court exceeded its authority when it imposed the term of supervised release. We conclude the error, if any, was invited and affirm.

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.¹ Love, a manager for FDS, was present when the FTC served the TRO and received actual notice of the TRO and its provisions at that time. On May 3, 2000, while the TRO was in effect, Love and another person formed a new corporation and proceeded to violate the TRO.

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).² Love entered into a plea agreement with the Government and pled guilty to the offense. In the plea agreement, Love acknowledged the district court could "order a term of supervised release of up to five years" in addition to a term of imprisonment. At his plea colloquy, Love again said he understood his sentence might include a term of supervised release of up to five years.

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 PSI's 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 followed by five years of supervised release.³ Love does not challenge the district court's ruling regarding his ineligibility for probation. Instead, he claims the district court erred in imposing the term of supervised release.

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,⁴ he contends the statute is inapplicable to criminal contempt because it mentions only felonies and misdemeanors, and contempt is an offense sui generis, neither felony nor misdemeanor. See Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 1526, 16 L.Ed.2d 629 (1966) (noting contempt is an offense sui generis ); see also United States v. Holmes, 822 F.2d 481, 493-94 (5th Cir.1987) (holding a statute authorizing fines for felonies or misdemeanors was inapplicable to criminal contempt because contempt is neither a felony nor a misdemeanor).

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),⁵ it is in his case a misdemeanor, in light of either the applicable Guidelines range, see United States v. Carpenter, 91 F.3d 1282, 1285 (9th Cir.1996) (holding "contempt should be classified for sentencing purposes according to the applicable Guidelines range for the most nearly analogous offense"), or the actual term of incarceration he received, see Cheff, 384 U.S. at 380, 86 S.Ct. at 1526 (classifying contempt for purposes of the Sixth Amendment according to the length of incarceration imposed). He submits we should decline to read § 3559(a)(1) as automatically classifying every instance of contempt a Class A felony simply because, in the absence of an express statutory maximum term of imprisonment in § 401, the theoretical maximum term is life in prison. See Carpenter, 91 F.3d at 1284 (rejecting the contention "all criminal contempts should be treated as Class A felonies"). According to Love's alternative argument, his sentence could include a maximum of only one year of supervised release under § 3583(b)(3).⁶

We do not reach the merits of Love's arguments because we conclude Love induced or invited the ruling he now claims was error. "It is a cardinal rule of appellate review that a party may not challenge as error a ruling or other trial proceeding invited by that party." United States v. Ross, 131 F.3d 970, 988 (11th Cir.1997) (quotations omitted). "The doctrine of invited error is implicated when a party induces or invites the district court into making an error." United States v. Stone, 139 F.3d 822, 838 (11th Cir.1998). "Where invited error exists, it precludes a court from invoking the plain error rule and reversing." United States v. Silvestri, 409 F.3d 1311, 1327 (11th Cir.2005) (quotations omitted).

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.⁷ Thus, Love is precluded from claiming the court erred in sentencing him to a term of five years' supervised release. Id.

AFFIRMED.

BARKETT, Circuit Judge, 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,¹ and hold that criminal contempt, as an offense sui generis, cannot be branded a Class A felony in every instance.

The government argues that criminal contempt is properly classified a Class A felony because 18 U.S.C. § 3559(a) provides a statutory framework for the classification of offenses based upon the maximum authorized sentence, and that this framework applies even when even when a particular offense lacks a specifically named statutory maximum. Mail fraud, for example, is undoubtedly a Class C felony even though—or indeed, precisely because—the corresponding statute, 18 U.S.C. § 1341, sets a maximum prison term of 20 years and does not specifically authorize supervised release. But the government's theory falters on this very analogy. However different may be individual instances of mail fraud, the substantive offense—the elements which make mail fraud criminal by law—are always the same, whereas the offense of criminal contempt encompasses a vast array of possible underlying substantive offenses. As at least one Court has recognized, "[n]o ceiling is imposed on the sentence for Class A felonies because Congress views all such felonies as extraordinarily serious crimes. Criminal contempts, in contrast, include a broad range of conduct, from trivial to severe." See United States v. Carpenter, 91 F.3d 1282, 1284 (9th Cir.1996).

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...