FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10331
Plaintiff-Appellee, D.C. No.
v. 3:06-cr-00544-
DEANTE BROUSSARD, MHP-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Submitted February 9, 2010*
San Francisco, California
Filed July 14, 2010
Before: Alex Kozinski, Chief Judge, David R. Thompson
and M. Margaret McKeown, Circuit Judges.
Opinion by Chief Judge Kozinski
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
10245
UNITED STATES v. BROUSSARD 10247
COUNSEL
Briefed by Ethan A. Balogh, Coleman & Balogh LLP, San
Francisco, California, for the defendant-appellant.
Briefed by Joseph P. Russoniello, United States Attorney,
Northern District of California, San Francisco, California;
Barbara J. Valliere, Chief, Appellate Section, Northern Dis-
trict of California, San Francisco, California; and Owen P.
Martikan, Assistant United States Attorney, Northern District
of California, San Francisco, California, for the plaintiff-
appellee.
OPINION
KOZINSKI, Chief Judge:
We consider how convictions for contempt of court are
classified for sentencing purposes in the wake of United
States v. Booker, 543 U.S. 220 (2005).
Facts
This case arises from Deante Broussard’s third supervised
release violation. But the story starts much earlier, when he
10248 UNITED STATES v. BROUSSARD
was released following his first supervised release violation.
One of the terms of Broussard’s second round of supervised
release required him to reside in twenty-four-hour lockdown
at a halfway house in Oakland. The day Broussard arrived at
the halfway house, he tried to escape. An alert ATF agent saw
Broussard jump into a car in front of the halfway house and
blocked the car’s path. Broussard was subdued after a scuffle
and eventually pleaded guilty to assaulting a federal officer
and contempt of court for violating supervised release. The
district judge sentenced him to two concurrent eighteen-
month prison terms, followed by two concurrent three-year
terms of supervised release. The conditions of supervised
release included a prohibition on “excessive use of alcohol”
and a ban on visiting San Francisco, where Broussard had
gang ties.
Broussard served his eighteen months and began a third
round of supervised release. A few weeks later, he violated its
terms by going to San Francisco, failing to report a police
contact and failing to report that he’d obtained a car. Brous-
sard pleaded guilty to the violations and the district judge
revoked his supervised release. At issue is the punishment she
then imposed.
The supervised release statute caps the overall length of the
sentence that can be imposed following revocation of super-
vised release but gives the district judge discretion to impose
either imprisonment, supervised release or a combination of
the two. 18 U.S.C. § 3583(b), (e)(3), (h). The maximum pos-
sible sentence for violating the terms of supervised release
turns on the seriousness of the underlying offense. 18 U.S.C.
§ 3583(b). The district judge was therefore required to clas-
sify the prior convictions supporting Broussard’s prior super-
vised release terms—assaulting a federal officer and contempt
of court—according to the scheme set out in 18 U.S.C.
§ 3559. Section 3559 classifies felonies by their maximum
sentence, with A felonies being the most serious and E felo-
nies being the least. For example, crimes with a maximum
UNITED STATES v. BROUSSARD 10249
sentence of life imprisonment or death are Class A felonies,
whereas crimes with a maximum sentence of less than five
years but more than one year are Class E felonies. Id.
§ 3559(a).
Because contempt of court has no statutory maximum, 18
U.S.C. § 401, the district judge held that Broussard’s prior
contempt conviction was for a Class A felony. The total maxi-
mum sentence for revocation of supervised release following
a Class A felony is five years. 18 U.S.C. § 3583(e)(3). The
judge sentenced Broussard to two years in prison and three
years of supervised release. One of Broussard’s conditions of
supervised release was that he “refrain from the use of alco-
hol.”
Broussard appealed the sentence, arguing that his contempt
conviction should have been classified as a Class E felony,
which would have capped his maximum total sentence at one
year. 18 U.S.C. § 3583(b)(3), (e)(3). The government con-
ceded that Broussard’s contempt conviction wasn’t a Class A
felony, but argued that it was a Class D felony, for which the
maximum sentence is three years, with up to two of those in
prison. Id. § 3583(b)(2), (e)(3). After affirming “the two year
term of imprisonment”—presumably on the basis of Brous-
sard’s other prior conviction, assaulting a federal officer
under 18 U.S.C. § 111, which the parties agree was a Class D
felony—we remanded “for the district judge to determine, in
the first instance, whether Broussard’s prior contempt convic-
tion should be considered a Class D felony, as the government
contends, or a Class E felony, as Broussard contends, and to
revise the term of supervised release accordingly.” United
States v. Broussard, No. 08-10128, slip op. at 1-2 (9th Cir.
Apr. 14, 2009) (mem.).
On remand, the district judge determined that Broussard’s
contempt conviction was most analogous to “escape” under
18 U.S.C. § 751, because he committed the contempt by try-
ing to escape from the halfway house. Neither party disputes
10250 UNITED STATES v. BROUSSARD
this analogy. Finding escape to be a Class D felony, the judge
treated Broussard’s contempt conviction as a Class D felony.
Because assaulting a federal officer is also a Class D felony,
the district judge imposed identical concurrent terms for both
offenses, consisting of two years in prison and one year of
supervised release. Finally, the judge refused to alter the
previously-imposed ban on consuming alcohol. Broussard
appeals yet again.
Analysis
[1] 1. Because criminal contempt has no statutory maxi-
mum sentence, 18 U.S.C. § 401, under a literal reading of the
classification statute, it would be a Class A felony, 18 U.S.C.
§ 3559(a) (“An offense that is not specifically classified by a
letter grade in the section defining it, is classified if the maxi-
mum term of imprisonment authorized is . . . life imprison-
ment, or if the maximum penalty is death, as a Class A
felony.”). We’ve rejected that literal approach to classifying
contempt convictions. In United States v. Carpenter we
explained 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 appropri-
ately, Congress meant to brand all contempts as serious and
all contemnors as felons.” 91 F.3d 1282, 1284 (9th Cir. 1996).
Therefore, “criminal contempt should be classified for sen-
tencing purposes according to the applicable Guidelines range
for the most nearly analogous offense.” Id. at 1285. We rea-
soned that the “applicable Guidelines range is directly linked
to the severity of the offense and provides the best analogy to
the classification scheme” because it “focuses on the upper
limit of the district judge’s discretion, classifying the crime
according to the maximum sentence the judge was authorized
to impose rather than the sentence actually imposed.” Id. It
was on the basis of Carpenter that we remanded Broussard’s
sentence following his first appeal. See p. 10249 supra.
But the legal landscape has shifted since Carpenter. Its fac-
tual premise that the guidelines range sets the “upper limit of
UNITED STATES v. BROUSSARD 10251
the district judge’s discretion,” Carpenter, 91 F.3d at 1285,
has been eroded by Booker, 543 U.S. at 245 (rendering the
guidelines advisory), and United States v. Carty, 520 F.3d
984, 991 n.5 (9th Cir. 2008) (en banc). The guidelines remain
an important consideration, but “the maximum sentence the
judge [i]s authorized to impose,” Carpenter, 91 F.3d at 1285
(emphasis omitted), is now the statutory maximum, see, e.g.,
Carty, 520 F.3d at 991 (“While the Guidelines are to be
respectfully considered, they are one factor among the
§ 3553(a) factors that are to be taken into account in arriving
at an appropriate sentence.”).
We are required to follow circuit precedent, but in the face
of intervening Supreme Court and en banc opinions, “a three-
judge panel of this court and district courts should consider
themselves bound by the intervening higher authority and
reject the prior opinion of this court as having been effectively
overruled.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc). This is particularly true for sentencing cases
from the mandatory-guidelines era, because the court sitting
en banc has held that “[p]rior cases are overruled to the extent
they are inconsistent with Rita, Gall, Kimbrough, or this opin-
ion.” Carty, 520 F.3d at 991 n.5.
[2] We therefore must revise the Carpenter rule in light of
Booker and its progeny. The basic rule of Carpenter remains
in place: The severity of contempt violations for purposes of
18 U.S.C. § 3559(a) turns on the most analogous underlying
offense. Carpenter, 91 F.3d at 1285. But judges are no longer
limited to the maximum guidelines sentence for that offense;
instead, the statutory maximum is now the “upper limit of the
district judge’s discretion.” Id. Our holding adapts Carpen-
ter’s overarching principle—that the upper end of the district
judge’s discretion is what matters—to a regime in which the
statute of conviction, rather than the sentencing guidelines,
sets the upper limit on the district judge’s discretion.
The district judge here analogized Broussard’s conviction
to “escape” under 18 U.S.C. § 751, which for Broussard
10252 UNITED STATES v. BROUSSARD
yielded a guidelines range of 30-37 months. Accordingly,
Broussard argues that the judge was required to treat his con-
tempt conviction as though its maximum sentence were 37
months, which would make it a Class E felony. 18 U.S.C.
§ 3559(a)(5). If Broussard were right, then the district judge
would only have been authorized to impose a one-year total
sentence, and exceeded her authority by imposing two years
of imprisonment and one year of supervised release on that
count. 18 U.S.C. § 3583(b)(3), (e)(3), (h).
[3] But, for the reasons explained above, Broussard is not
right. In determining the class of felony for purposes of 18
U.S.C. § 3559(a) we look to the statutory maximum, not the
guidelines maximum. The statutory maximum sentence for
escape is five years, 18 U.S.C. § 751, which makes it a Class
D felony, 18 U.S.C. § 3559(a)(4). The maximum sentence for
revocation of supervised release when the underlying offense
is a Class D felony is three years, with up to two of those
years in prison. 18 U.S.C. § 3583(b)(2), (e)(3), (h). Thus, the
judge did not exceed her authority by imposing two years of
imprisonment and one year of supervised release on the basis
of Broussard’s prior contempt conviction.
2. Broussard also argues that the district judge abused her
discretion by prohibiting him from using alcohol. Broussard
could have raised this issue in his first appeal, but did not. Our
remand order directed the district court to “determine, in the
first instance, whether Broussard’s prior contempt conviction
should be considered” a Class D or E felony. Broussard, No.
08-10128, slip op. at 2. Because our remand was limited to
that single issue, the district judge was powerless to alter the
other terms of Broussard’s sentence. See, e.g., United States
v. Pimentel, 34 F.3d 799, 800 (9th Cir. 1994) (“In light of this
clear evidence that the scope of our remand was limited to the
single sentencing issue raised in Pimentel’s prior appeal, the
district court was without authority to reexamine any other
sentencing issues on remand.”).
UNITED STATES v. BROUSSARD 10253
* * *
The sentencing guidelines are now advisory. The maximum
sentence authorized by the statute of conviction is the upper
limit on a district judge’s discretion. We adapt Carpenter’s
express rationale to this new reality.
AFFIRMED.