[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11141 May 18, 2006
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 04-60231-CR-WJZ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHRISTOPHER LOVE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 18, 2006)
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
2
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.
1
The FTC alleged the defendants placed classified ads in newspapers around the country,
falsely claiming U.S. Postal Service positions and federal wildlife service jobs were available
locally and misrepresenting the starting salaries for these positions. When customers called the
toll-free number for more information, the defendants told them that for a fee they could receive
a list of available postal service or wildlife service jobs, as well as exam information and
preparation materials. The defendants falsely told customers they were likely to obtain a job if
they purchased the materials and that the fee was refundable if they were unsuccessful.
2
18 U.S.C. § 401 reads, in relevant part:
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 . . .
(3) Disobedience or resistence to its lawful writ, process, order, rule, decree, or
command.
3
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
3
The court calculated an advisory Sentencing Guidelines range of six to twelve months’
incarceration, based on a total offense level of 10 and a criminal history category of I. See
U.S.S.G. § 2J1.2 (2000) (setting forth Guidelines for obstruction of justice).
4
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 (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
4
18 U.S.C. § 3583(a) reads, in pertinent part: “The court, in imposing a sentence to a
term of imprisonment for a felony or a misdemeanor, may include as a part of the sentence a
requirement that the defendant be placed on a term of supervised release after imprisonment
. . . .”
5
18 U.S.C. § 3559(a) reads, in pertinent part:
An offense that is not specifically classified by a letter grade in the section
defining it, is classified if the maximum term of imprisonment authorized is –
(1) life imprisonment, or if the maximum penalty is death, as a Class A felony;
...
5
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
(6) one year or less but more than six months, as a Class A misdemeanor;
(7) six months or less but more than thirty days, as a Class B misdemeanor . . . .
6
18 U.S.C. § 3583(b) provides, in relevant part:
Except as otherwise provided, the authorized terms of supervised release are –
(1) for a Class A or B felony, not more than five years;
...
(3) for a Class E felony, or for a misdemeanor (other than a petty offense), not
more than one year.
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
7
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.
7
We count at least five instances during sentencing where Love’s counsel requested
supervised release:
[COUNSEL]: Your Honor, let me just – I heard the Court say that the – that it
either has to be a fine or a jail sentence. I was – I was wondering whether
supervised release is an option here. . . .
And I – And I was hoping that maybe the Court could sentence him to
time served followed by supervised release, or structure a sentence that way. . . .
THE COURT: So you are suggesting a term of imprisonment of time served.
[COUNSEL]: Followed by supervised release with a special condition of six
months home confinement or whatever the judge thinks is reasonable under the
facts and circumstances of the case.
...
[COUNSEL]: So I’m asking that in light of what we recommended previously
that he be sentenced to some term of supervision. Whether we call it probation or
supervised release . . . .
[COUNSEL]: . . . I am thinking about another way to resolve the dilemma, your
Honor, is what I’m saying.
THE COURT: All right.
[COUNSEL]: We sentence[] him to time served and impose two years of
supervised release . . . .
8
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,8 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
felony even though – or indeed, precisely because – the corresponding statute, 18
U.S.C. § 1341, sets no maximum penalty and does not specify whether the crime is
a felony or misdemeanor. But the government's theory falters on this very
8
Although this Court normally declines to address the existence of error where an alleged
error has been invited, it is not compelled to do so. See, e.g., Glassroth v. Moore, 335 F.3d 1282,
1289-90 (11th Cir. 2003) (adopting Tenth Circuit’s holding on evidentiary claim but concluding
“in any event” that alleged error was invited); Ford ex rel. Estate of Ford v. Garcia, 289 F.3d
1283, 1295 (11th Cir. 2002) (“declin[ing] to review for reversible error” where error was
invited) (emphasis added); U.S. v. Hansen, 262 F.3d 1217, 1248 (11th Cir. 2001) (“Under the
invited error doctrine, we will generally not review an error induced or invited by a party . . .”)
(emphasis added).
9
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 (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 (1910)). There is no
reason why Title 18 must be read to permit such a constitutionally suspect result:
"where a statute is susceptible of two constructions, by one of which grave and
doubtful constitutional questions arise and by the other of which such questions
10
are avoided, our duty is to adopt the latter." Jones v. United States, 529 U.S. 848,
857 (2000). Similarly, there is no reason why Title 18 must be read to permit
results that are, if not unconstitutional under the Eighth Amendment, patently
absurd. See In re International Administrative Services, Inc., 403 F.3d 689,
707-08 (11th Cir. 2005) (interpreting a federal statute so as to avoid an "absurd
result"); see also Regions Bank v. Provident Bank, Inc., 345 F.3d 1267, 1276 ("the
Supreme Court has repeatedly held that "[i]f possible, [a court] should avoid
construing [a] statute in a way that produces . . . absurd results.") (citing Dewsnup
v. Timm, 502 U.S. 410, 427 (1992).
In United States v. Carpenter, the Ninth Circuit successfully avoided a
constitutionally feeble or absurd reading of the criminal contempt statute. Like the
instant case, Carpenter involved a defendant who appealed his sentence for
criminal contempt, consisting of light incarceration and several years suspended
release. Like Love, defendant Carpenter argued that contempt should be classified
based upon the sentence actually imposed; because Carpenter's contempt violation
would have been a "petty" offense under this approach, he argued, like Love, that
the court was not authorized to impose supervised release at all. Id. at 1283. The
government advanced in Carpenter the same argument it raises before this Court –
11
namely, that all criminal contempts are Class A felonies by virtue of the fact that
no maximum penalty is indicated by statute. Id. at 1284.
The Carpenter Court rejected both positions, however, holding that criminal
contempt should be classified for sentencing according to the applicable
Guidelines range for the most nearly analogous offense. Id. at 1285 (holding that
where the Guidelines range was six to 12 months for the underlying offense, the
contempt should be classified as a "Class A misdemeanor"). With regard to the
government's argument, the Court said 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 appropriately, Congress meant to
brand all contempts as serious and all contemnors as felons." Carpenter, 91 F.3d
at 1284 (citing Frank v. United States, 395 U.S. 147, 149 (1969) (failure to
establish maximum sentence for contempt may reflect Congress's "recognition of
the scope of criminal contempt") and U.S.S.G. § 2J1.1 comment n. 1 (rejecting
any guideline range for criminal contempt "[b]ecause misconduct constituting
contempt varies significantly.").
Although it is true that Carpenter was decided when the Sentencing
Guidelines were mandatory, the logic of the decision is not impaired by the
Guidelines' recent fate. As the Ninth Circuit explained, the Guideline ranges are a
12
useful and reasonable basis for classifying particular instances of criminal
contempt because they are "directly linked to the severity of the offense[, . . .]
provid[ing] the best analogy to the classification scheme set out in 18 U.S.C.
§ 3559." Id. at 1285. That is to say, the Carpenter approach avoids the absurd
result of branding all criminal contempts Class A felonies, while simultaneously
achieving, or at least approximating, the intent of Congress. Thus Carpenter's
reasoning presumably could survive even in the absence of the Guidelines
themselves; in such case, a sentencing court would look to the most closely
analogous offense for which federal law mandates or recommends a maximum
sentence.
I observe that this proposed resolution precisely mirrors the joint
recommendation contained in Love's plea agreement but rejected by the district
court. In that agreement, the United States and the defendant urged the court to
formulate the "sentence to be imposed" by reference to the Sentencing Guideline's
determination of the base offense level for "the most analogous offense."
13