IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-30626
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER FULLER,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
July 31, 1997
Before KING, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:*
Christopher Fuller appeals the contempt conviction and
sentence imposed by the district court. Finding no reversible
error, we affirm.
I. BACKGROUND
The saga of Christopher Fuller’s conviction for criminal
contempt is regrettably lengthy and replete with the kind of
behavior that could be predicted to end in a contempt conviction.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
Fuller was indicted by a grand jury on August 5, 1993, and
charged with conspiracy to distribute 990 dosage units of
lysergic acid diethylamide (LSD), in violation of 21 U.S.C.
§ 846. On August 12, 1993, Fuller was arraigned, pleaded not
guilty, and was released on a $25,000 unsecured bond with
conditions of travel restrictions and pretrial supervision.
A superseding bill of information was issued in which the
time period of the conspiracy was changed, but the charge of
conspiracy to distribute 990 dosage units of LSD remained.
Fuller pleaded guilty on September 29, 1993. Sentencing was set
for December 15, 1993, and Fuller was released on his earlier
bond.
On December 8, 1993, a warrant was issued for Fuller’s
arrest due to his failure to attend appointments at the Pretrial
Services Office and his positive tests for marijuana on three
separate occasions. With the warrant for his arrest still
outstanding, Fuller failed to appear for his scheduled sentencing
on December 15, 1993. A second warrant for his arrest was
issued, and Fuller was arrested on January 4, 1994, at which time
his bond was revoked and he was remanded to the custody of the
United States Marshal.
On January 5, 1994, Fuller was sentenced to five years
probation subject to the standard general conditions of probation
plus the following special conditions: residency at the
Volunteers of America halfway house for a period of six months
2
and mandatory participation in a program of testing and/or
treatment for drug abuse.
On April 22, 1994, a Petition for Summons was filed against
Fuller alleging that he tested positive for marijuana on six
occasions, he failed to keep appointments at his drug counseling
center on two occasions, and he was terminated from the drug
aftercare program in which he was participating. On May 11,
1994, pursuant to a hearing on the Rule to Revoke Probation,
Fuller stipulated to the allegations in the Petition, and the
district court revoked Fuller’s probation. Fuller received a
sentence of nine months imprisonment followed by two years of
supervised release.
Fuller served his nine months of imprisonment and began his
term of supervised release on March 2, 1995. Seven months later,
on October 11, 1995, the Office of Probation filed a second
Petition for Summons alleging numerous new violations of the
conditions of his release including positive tests for marijuana,
benzodiazepines, and cocaine, and failure to attend scheduled
drug counseling treatment appointments. The Petition also
alleged that on September 6, 1995, Fuller had been arrested by
the Jefferson Parish Sheriff’s Office for possession and
distribution of LSD.
On October 11, 1995, Fuller appeared before a magistrate
judge. The magistrate judge explained to Fuller the government’s
allegations against him, set a $5,000 unsecured bond with the
3
standard conditions, and instructed Fuller to appear in court on
October 25, 1995. The magistrate judge further instructed
Fuller: “If you violate any condition of release, a warrant for
your arrest may be issued and you could be jailed until this
matter is disposed of and also prosecuted for contempt of court.”
On October 25, 1995, Fuller appeared with counsel for a
hearing on the Rule to Revoke Supervised Release before the
Honorable Morey L. Sear. Chief Judge Sear found that Fuller had
violated the conditions of his supervised release and ordered
that he be committed to the custody of the Bureau of Prisons for
a period of eighteen months.
At the hearing, Fuller begged to be given some time to spend
with his mother, who was dying of cancer. In response to
Fuller’s pleas, Chief Judge Sear ordered that Fuller be permitted
to self-surrender to an institution designated by the Bureau of
Prisons on or before noon on January 5, 1996. Chief Judge Sear
permitted Fuller to remain on bond pending his self-surrender;
however, the bond was amended to include the following
conditions: 1) that Fuller report to the U.S. Probation Office
each day of the week that the Office is open and provide a urine
specimen; 2) that Fuller reside exclusively with his mother, and
that his fiancee vacate the premises immediately; 3) that Fuller
not associate in any way with anyone who uses controlled
substances or had controlled substances at his disposal; 4) that
Fuller remain on electronic monitoring; and 5) that Fuller report
4
to JoEllen Smith Hospital to begin his drug treatment.
On October 30, 1995, five days after his sentencing and
release on bond, Fuller failed to report to his home as per the
condition of his bond, and on October 31, 1995, Fuller failed to
report to the United States Probation Office. A warrant for his
arrest was obtained on October 31, 1995, alleging violations of
his bond.
On December 27, 1995, Fuller was arrested in Hawaii. On
January 23, 1996, Fuller was returned to the Eastern District of
Louisiana where he was remanded to the custody of the United
States Marshal.
On May 9, 1996, the government filed a Motion for Criminal
Contempt against Fuller alleging that he willfully disobeyed the
district court’s lawful commands of October 26, 1995, and the
magistrate judge’s order of October 11, 1995. On June 7, 1996,
Fuller was rearraigned and entered a plea of guilty to the
criminal contempt charge. A factual basis was signed by Fuller
and his attorney and entered into the record. The district court
sentenced Fuller to twenty-four months imprisonment to run
consecutively to the term of eighteen months imprisonment imposed
on October 25, 1995. On June 10, 1996, the district court held a
hearing to advise Fuller of his right to a jury trial because the
court had neglected to inform Fuller of this right on June 7.
Fuller waived his right to a jury trial and again entered a plea
of guilty, with the knowledge that his sentence would be twenty-
5
four months. Fuller timely appealed.
Court-appointed counsel for Fuller filed a brief as required
by Anders v. California, 386 U.S. 738 (1967), requesting leave to
withdraw. This court denied the motion and directed the parties
to brief the following issues: 1) whether the district court was
authorized to convict Fuller of criminal contempt for violating
conditions of his bond, inasmuch as the district court’s order of
October 26, 1995, states only that a violation of the conditions
stated in the order “will result in the immediate revocation of
the defendant’s bond,” and 2) whether it was plain error to
sentence Fuller without referring to U.S.S.G. § 2J1.1 and other
Sentencing Guideline provisions that might be applicable.
II. DISCUSSION
A. Authority of the District Court to Convict Fuller of Criminal
Contempt
Fuller contends that the district court was not authorized
to convict him of criminal contempt for violating the conditions
of his bond. He relies on two theories. First, he argues that
he did not have adequate notice because the court’s October 26
order, which permitted him to self-surrender for service of his
sentence for violating his supervised release, stated that his
failure to comply with the conditions imposed would “result in
the immediate revocation of [his] bond,” but did not mention
prosecution for contempt of court as a sanction. Second, he
6
argues that his violations were not egregious enough to
constitute criminal contempt.
Fuller did not raise these points in the district court.
When a defendant in a criminal case has forfeited an error by
failing to object in district court, this court may remedy the
error only in exceptional circumstances. United States v.
Calverley, 37 F.3d 160, 162 (5th Cir. 1994)(en banc), cert.
denied, 513 U.S. 1196 (1995).
Under Federal Rule of Criminal Procedure 52(b), this court
may correct forfeited errors only when the appellant shows the
following factors: (1) there is an error, (2) that is plain, (3)
and that affects his substantial rights. Id. (citing United
States v. Olano, 507 U.S. 725, 732 (1993)). Plain error is one
that is “clear or obvious, and, at a minimum, contemplates an
error which was clear under current law at the time of trial.”
Calverly, 37 F.3d at 162-63 (internal quotations omitted). “[I]n
most cases the affecting of substantial rights requires that the
error be prejudicial; it must affect the outcome of the
proceeding.” Id. at 164. This court lacks the authority to
relieve an appellant of this burden of proof. Olano, 507 U.S. at
741.
If the above factors are established, the decision to
correct the forfeited error remains within the sound discretion
of the court. Olano, 507 U.S. at 735-36. The court will not
exercise that discretion unless the error seriously affects the
7
fairness, integrity, or public reputation of judicial
proceedings. Id. at 736.
Fuller has failed to show that the district court erred in
the ways that he suggests. As to the adequacy of notice that he
might be prosecuted for criminal contempt, we can only conclude
that Fuller had ample notice. At the hearing on October 11,
1995, Fuller was advised by the magistrate judge that if he
violated any condition of release, he could be prosecuted for
criminal contempt. Further, at the conclusion of the hearing
before Chief Judge Sear on October 26, 1995, Fuller signed an
Order to Surrender which stated that if he failed to report, he
could be cited for contempt. Finally, the government filed a
Motion for Criminal Contempt which fulfilled all the notice
requirements of Federal Rule of Criminal Procedure 42(b). Thus,
Fuller’s claim that he lacked adequate notice is without merit.
Fuller’s claim that his violations did not rise to a level
egregious enough to constitute criminal contempt is likewise
without merit. The relevant statutes and our case law make clear
that violations of travel restrictions or other conditions of
release constitute criminal contempt of court. 18 U.S.C. § 3148;
United States v. Williams, 622 F.2d 830, 839 (5th Cir. 1980)(en
banc), cert. denied, 449 U.S. 1127.
B. Failure to Refer to Sentencing Guidelines
Fuller contends that the district court committed plain
8
error when it sentenced him to serve twenty-four months for
contempt without having a presentence report prepared and without
referring to and applying the Sentencing Guidelines as required
by Rule 11(c)(1) of the Federal Rules of Criminal Procedure.1 He
argues that even if the court found no analogous guideline, it
should have made reference to the sentencing provisions set forth
in 18 U.S.C. § 3553(b), as provided by USSG § 2X5.1.
At the time of Fuller’s guilty plea to the contempt charges,
Fuller asked the district court to sentence him on that day. The
district court then sentenced Fuller to twenty-four months
imprisonment. Fuller made no objections to the method of
sentencing. Two days later, Fuller again appeared before the
court to confirm the voluntariness of his plea.
The government concedes in its brief that the district court
plainly erred by not ordering the preparation of a presentence
report and not referring to the Sentencing Guidelines. Section
6A1.1 of the Sentencing Guidelines provides that “[t]he defendant
may not waive the preparation of the presentence report.”
1
FED. R. CRIM. P. 11(c)(1) provides in pertinent part:
Before accepting a plea of guilty or nolo contendere, the
court must address the defendant personally in open court
and inform the defendant of, and determine that the
defendant understands, the following:
(1) the nature of the charge to which the plea is
offered, the mandatory minimum penalty provided by law,
if any, and the maximum possible penalty provided by law
. . ., the fact that the court is required to consider
any applicable sentencing guidelines but may depart from
those guidelines under some circumstances . . . .
9
However, the government contends, and we agree, that the failure
of the district court to order the preparation of a presentence
report did not affect Fuller’s substantial rights. In this
instance, there was, in fact, sufficient information in the
extensive record before the district court to enable the
meaningful exercise of the district court’s sentencing authority
pursuant to 18 U.S.C. § 3553, cf. USSG § 6A1.1, and Fuller has
not identified any information that the district court lacked.
The district court’s error in failing to make reference to
the Sentencing Guidelines also did not affect Fuller’s
substantial rights. The section for criminal contempt in the
Sentencing Guidelines, § 2J1.1, states only: “Apply § 2X5.1
(Other Offenses).” Section 2X5.1 provides:
If the offense is a felony or Class A misdemeanor for
which no guideline expressly has been promulgated,
apply the most analogous offense guideline. If there
is not a sufficiently analogous guideline, the
provisions of 18 U.S.C. § 3553(b) shall control, except
that any guidelines and policy statements that can be
applied meaningfully in the absence of a Chapter Two
offense guideline shall remain applicable.2
2
18 U.S.C. § 3553(b) provides in pertinent part:
In the absence of an applicable sentencing guideline, the
court shall impose an appropriate sentence, having due
regard for the purposes set forth in subsection (a)(2).
. . . [I]n the case of an offense other than a petty
offense, the court shall also have due regard for the
relationship of the sentence imposed to sentences
prescribed by guidelines applicable to similar offenses
and offenders, and to the applicable policy statements
of the Sentencing Commission.
18 U.S.C. § 3553(a) provides in pertinent part:
10
The commentary to § 2J1.1 provides:
Because misconduct constituting contempt varies
significantly and the nature of the contemporaneous
conduct, the circumstances under which the contempt was
committed, the effect the misconduct had on the
administration of justice, and the need to vindicate
the authority of the court are highly context-
dependant, the Commission has not provided a specific
guideline for this offense. In certain cases, the
offense will be sufficiently analogous to § 2J1.2
(Obstruction of Justice) for that guideline to apply.
As the commentary makes clear, criminal contempt is a highly
fact-specific offense. The Commission did not create a guideline
for this offense and was unable to recommend the application of
any analogous guideline provisions, except, in certain
circumstances, § 2J1.2 (Obstruction of Justice). Therefore, the
determination of the appropriate punishment for criminal contempt
is largely left to the district court’s discretion. Under these
circumstances, we cannot say that the district court’s failure to
The court, in determining the particular sentence to be
imposed, shall consider --
* * * * * *
(2) the need for the sentence imposed --
(A) to reflect the seriousness of the offense,
to promote respect for the law, and to provide
just punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes
of the defendant; and
(D) to provide the defendant with the needed
educational or vocational training, medical
care, or other correctional treatment in the
most effective manner.
11
apply the Sentencing Guidelines affected Fuller’s substantial
rights.
C. Reasonableness of the Sentence
Fuller argues that the sentence imposed by the district
court is unreasonable. A sentence imposed for which there is no
applicable sentencing guideline will be reversed only if it is
plainly unreasonable. 18 U.S.C. § 3742(e)(4); United States v.
Underwood, 880 F.2d 612, 619 (1st Cir. 1989). In making a
reasonableness determination, we must consider the reasons the
district court gave for the sentence, and we also must consider
the policy directive set forth in 18 U.S.C. § 3553(b):
In the absence of an applicable sentencing guideline .
. . the court shall also have due regard for the
relationship of the sentence imposed to sentences
prescribed by guidelines applicable to similar offenses
and offenders, and to the applicable policy statements
of the Sentencing Commission.
Using the appropriate Guidelines analysis, we conclude that
the sentence of twenty-four months is not unreasonable. A
comparison with several somewhat analogous guidelines leads us to
this conclusion. Section 2J1.2 (Obstruction of Justice) has a
base offense level of 12, which, combined with Fuller’s criminal
history category of II, would result in a guideline range of 12
to 18 months. Section 2J1.6 (Failure to Appear by Defendant) has
a base offense level of 6 for a failure to appear other than for
service of sentence. However, in Fuller’s case, the base offense
level would be increased by 9 because his underlying offense is
12
punishable by imprisonment for a term of 15 years or more,
resulting in a base offense level of 15. Thus, under this
section, the guideline range applicable to Fuller would be 21 to
27 months, or 15 to 21 months if Fuller were granted a two level
reduction for acceptance of responsibility. Because guidelines
for offenses even remotely analogous to Fuller’s provide a
sentencing range of 4 to 27 months, we cannot say that Fuller’s
sentence of 24 months is clearly unreasonable.3
D. Compliance with Rule 11 Requirements During Plea Colloquy
Fuller argues that he was not fully informed of the
consequences of his guilty plea on the charge of criminal
contempt, in violation of Rule 11 of the Federal Rules of
Criminal Procedure.4 More specifically, Fuller contends that he
3
Fuller also attempts to argue that his sentence is
unreasonable because it is consecutive. This argument fails
because the Sentencing Guidelines explicitly state that if a
defendant commits an offense after he has been sentenced for a
previous offense, “the sentence for the instant offense shall be
imposed to run consecutively to the undischarged term of
imprisonment.” USSG § 5G1.3.
4
Rule 11 provides in pertinent part:
(c) Advice to Defendant. Before accepting a plea
of guilty or nolo contendere, the court must
address the defendant personally in open court and
inform the defendant of, and determine that the
defendant understands, the following:
(1) the nature of the charge to which the plea is
offered, the mandatory minimum penalty provided by
law, if any, and the maximum possible penalty
provided by law, including the effect of any
special parole or supervised release term, the fact
that the court is required to consider any
13
was not informed (1) about the potential sentencing range he
faced, (2) that the sentence in the judge’s discretion was in no
way limited by statute, and (3) that reference would have to be
made to the Sentencing Guidelines for an analogous offense.
At the initial plea colloquy, on June 7, 1996, the district
court made sure that Fuller had read the motion charging him with
contempt and that he understood the offense with which he was
charged. The attorney for the government then asked Fuller: “Do
you understand that, if the Court accepts your plea of guilty to
this contempt of court, the Court may sentence you to a fine or
imprisonment at its discretion?” Fuller said that he understood.
The district court explained that Fuller had a right to a hearing
in which he could cross-examine witnesses and offer evidence in
applicable sentencing guidelines but may depart
from those guidelines under some circumstances,
and, when applicable, that the court may also order
the defendant to make restitution to any victim of
the offense; and
* * * * * *
(3) that the defendant has the right to plead not
guilty or to persist in that plea if it has already
been made, the right to be tried by a jury and at
that trial the right to confront and cross-examine
adverse witnesses, and the right against compelled
self-incrimination . . . .
* * * * * *
(h) Harmless Error. Any variance from the
procedures required by this rule which does not
affect substantial rights shall be disregarded.
14
his defense. At that point Fuller reaffirmed his desire to enter
a plea of guilty and waive his right to a hearing. The district
court then asked Fuller: “And you understand that the sentence I
may impose is fully within my discretion?” Fuller responded,
“Yes, Your Honor; I’m well aware of that.” Fuller requested that
the district court sentence him that day. After going over the
history of Fuller’s offense, the district court accepted his plea
of guilty to the charge of criminal contempt and sentenced him to
two years incarceration.
Several days later, on June 10, 1996, the district court
called Fuller back into court to make certain that Fuller was
aware of his right to a jury trial. The district court gave
Fuller the opportunity to withdraw his guilty plea and substitute
a plea of not guilty. Fuller stated that he wanted to leave
things as they were and waive his right to a jury trial. The
district court then had the attorney for the government read the
factual basis for the guilty plea. Fuller attested to the
correctness of the factual basis and, in response to questions by
the district court, affirmed that his waiver of his right to a
jury trial was voluntary.
Mistakes made during a Rule 11 plea colloquy should be
reviewed for harmless error. FED. R. CRIM. P. 11(h). “[W]hen an
appellant claims that a district court has failed to comply with
Rule 11, we shall conduct a straightforward, two-question
‘harmless error’ analysis: (1) Did the sentencing court in fact
15
vary from the procedures required by Rule 11, and (2) if so, did
such variance affect substantial rights of the defendant?”
United States v. Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en
banc). “To determine whether Rule 11 error is harmless . . . ,
we focus on whether the defendant’s knowledge and comprehension
of the full and correct information would have been likely to
affect his willingness to plead guilty.” Id.
The district court varied from the procedures required by
Rule 11 when the court failed to inform the defendant that the
court is required to consider any applicable sentencing
guidelines.5 This variance, however, did not affect Fuller’s
substantial rights. The commentary to the Sentencing Guidelines
section for criminal contempt makes clear the fact-specific
nature of the offense and leaves the determination of the
appropriate sentence to the district court’s discretion. Fuller
understood that the sentence the district court chose to impose
was fully within its discretion. Furthermore, Fuller had an
opportunity to change his guilty plea after he knew that his plea
would result in a sentence of two years imprisonment, but he
still chose to plead guilty. Thus, to the extent that the
district court varied from Rule 11 procedures, such error is
harmless.
5
We note that the district court also did not mention a
statutory maximum or minimum penalty. This was not error because
there is no statutory maximum or minimum penalty for criminal
contempt. See 18 U.S.C. § 401(3).
16
III. CONCLUSION
For the foregoing reasons, Fuller’s conviction and sentence
are AFFIRMED.
17
18