U.S. v. Henry

• Decision Date: 07 March 2008
• Docket Number: No. 06-1298.,No. 06-1299.,06-1298.,06-1299.
• Parties: UNITED STATES of America, Appellee, v. Lee HENRY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

519 F.3d 68

UNITED STATES of America, Appellee, v. Lee HENRY, Defendant, Appellant.

No. 06-1298.

No. 06-1299.

United States Court of Appeals, First Circuit.

Heard December 5, 2007.

Decided March 7, 2008.

Kenneth I. Seiger, by appointment of the Court, for appellant.

Alex J. Grant, Assistant United States Attorney, with whom Mark T. Quinlivan, Assistant United States Attorney, and Michael J. Sullivan, United States Attorney, were on brief for appellee.

Before LYNCH and HOWARD, Circuit Judges, and STAHL, Senior Circuit Judge.

STAHL, Senior Circuit Judge.

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 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, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that Henry's appeals did not present any nonfrivolous issues for review, including the question of whether Henry's two prior Connecticut state court convictions should be considered "related" offenses under the Guidelines. On April 3, 2007, we issued an order providing for summary disposition of the matters addressed by the Anders brief, but we requested further briefing concerning two issues raised by Henry's pro se brief — more specifically, his double jeopardy claim and § 851(b) challenge.

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, 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); United States v. Soto-Beniquez, 356 F.3d 1, 46 (1st Cir.2003). To establish plain error, a defendant must show the existence of (1) an error; (2) that is plain; (3) that affected his substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Roy, 506 F.3d 28, 30 (1st Cir.2007) (citing United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Essentially, we will only reverse if the trial court committed "blockbuster[]" errors. United States v. Moran, 393 F.3d 1, 13 (1st Cir.2004) (alteration in original) (internal quotation marks omitted) (quoting United States v. Griffin, 818 F.2d 97, 100 (1st Cir.1987)).

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." United States v. Pacheco, 434 F.3d 106, 111-12 (1st Cir.2006) (citation omitted); accord North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). We assume arguendo the charges for contempt and drug trafficking against Henry constitute the "same offense" for double jeopardy purposes, because proving the contempt violation required the government to prove the underlying offense of drug trafficking. See United States v. Dixon, 509 U.S. 688, 700, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (Scalia, J., joined by Kennedy, J.); see also Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (holding that the test "to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not").

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, 459 U.S. 359, 365-66, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); United States v. LeMoure, 474 F.3d 37, 43 (1st Cir.2007). A defendant's constitutional rights are not implicated where "the legislature clearly intended to impose multiple punishments for the offense." United States v. Perez-Gonzalez, 445 F.3d 39, 45 (1st Cir.2006). "Thus, to determine whether multiple punishments are authorized, we must . . . seek to determine the legislature's intent." Id.

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, 481 U.S. 787, 800, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987) (explaining that contempt "proceedings are not intended to punish conduct proscribed as harmful by the general criminal laws" but rather to "vindicat[e] the authority of the court"). Thus, the gravamen of Henry's § 401(3) violation is not his act of drug trafficking, but rather his failure to obey the court's command that he refrain from any illegal act while on pretrial release. See United States v. Woodward, 469 U.S. 105, 109, 105 S.Ct. 611, 83 L.Ed.2d 518 (1985) (permitting an inference of congressional intent to authorize multiple punishments where the relevant statutes guard against different evils).

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 509 U.S. at 712, 113 S.Ct. 2849. The divided court left open the possibility that an individual could be punished for both contempt and an underlying offense in a single proceeding without implicating constitutional concerns.⁶ See id. at 714, 113 S.Ct. 2849 (Rehnquist, C.J., joined by O'Connor and Thomas, JJ., concurring in part and dissenting in part) (rejecting proposition that the Double Jeopardy Clause bars even separate prosecutions for contempt and underlying offenses); id. at 723-24, 113 S.Ct. 2849 (White, J., joined by Stevens and Souter, JJ., concurring in the judgment in part and dissenting in part) (discussing possible constitutionality of multiple punishments for contempt and underlying offenses if imposed in a single proceeding); id. at 742-43, 113 S.Ct. 2849 (Blackmun, J., concurring in the judgment in part and...