United States v. Henry

United States Court of Appeals
For the First Circuit

Nos. 06-1298, 06-1299

UNITED STATES OF AMERICA,

Appellee,

v.

LEE HENRY,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Lynch and Howard, Circuit Judges,
and Stahl, Senior Circuit Judge.

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.

March 7, 2008
 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

1
Following a jury trial, Henry was convicted of three of the
four counts charged in the indictment, and his convictions were
affirmed on appeal. See United States v. Henry, 482 F.3d 27 (1st
Cir. 2007).

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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,

2
Henry was also sentenced for his original drug-trafficking
offense during this proceeding. He was, however, represented by
different counsel for that offense--apparently, Henry's original
counsel refused to represent him in the matter currently on appeal
due to her distaste for his violation of the terms of his pretrial
release.

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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 (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

3
Henry, in his brief, seemingly attempts to use his double
jeopardy argument to bootstrap an ineffective assistance of counsel
claim into the instant appeal. We will not consider any such
claim, however, as it has been waived for purposes of this appeal.
United States v. Jiminez, 498 F.3d 82, 88 (1st Cir. 2007) (noting
"the well-settled appellate rule that 'issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived'" (quoting United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990))). Moreover, "[w]e have
held with a regularity bordering on the monotonous that fact-
specific claims of ineffective assistance cannot make their debut

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did not object on such grounds at trial, we review only for plain

error. United States v. Cotton, 535 U.S. 625, 631 (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 (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 (1969). We assume arguendo

on direct review . . . ." United States v. Leahy, 473 F.3d 401,
410 (1st Cir. 2007) (internal quotation marks omitted) (quoting
United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993)).

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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 (1993) (Scalia, J., joined by Kennedy,

J.); see also Blockburger v. United States, 284 U.S. 299, 304

(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 (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:

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 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

4
The legislative history of 18 U.S.C. § 401(3) does not
elucidate the matter. We note, however, that Henry's sentence for
contempt was enhanced pursuant to 18 U.S.C. § 3147. Section 3147
provides that "[a] person convicted of an offense committed" while
on pretrial release shall serve a term of imprisonment "consecutive
to any other sentence of imprisonment," thus lending support to the
government's position. 18 U.S.C. § 3147.

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separate from those related to punishing drug dealers.5 See Young

v. United States ex rel. Vuitton et Fils, 481 U.S. 787, 800 (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 (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. 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

5
Indeed, at sentencing, the district judge expressed his
concern that Henry's contempt of court would not only tarnish the
reputation of the courts, but also harm future defendants by
discouraging the courts from releasing them.

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constitutional concerns.6 See id. at 714 (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 (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 (Blackmun, J., concurring in the

judgment in part and dissenting in part) (asserting that contempt

proceedings should not be subject to traditional double jeopardy

analysis); id. at 745-46 (Souter, J., joined by Stevens, J.,

concurring in the judgment in part and dissenting in part)

(reserving judgment on whether cumulative punishments for the same

offense are permissible when clearly intended by the legislature).

Thus, Dixon does not answer the question when punishments for

contempt and for the underlying crime (from which the contempt

order is derived) are administered in a single proceeding.

Second, Henry argues that the canons of statutory

interpretation militate in favor of a determination that Congress

did not intend to impose multiple punishments in cases involving

§ 401. He notes that, in 18 U.S.C. § 3285, Congress explicitly

6
Some limited case law supports this interpretation. See
United States v. Wildergren, C-94-20452, 1995 WL 249266, at *4
(N.D. Cal. Apr. 25, 1995).

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declared that criminal contempt proceedings instituted pursuant to

18 U.S.C. § 402 do not "bar . . . any criminal prosecution for the

same act[,]" but that Congress has remained silent concerning

§ 401. Thus, Henry reasons that the absence of any similar

specific authorization with respect to § 401 compels the negative

inference that Congress did not intend for multiple punishments to

be imposed for contempt of court under § 401 and underlying

offenses. See United States v. Lahey Clinic Hosp., Inc., 399 F.3d

1, 10 (1st Cir. 2005) (recognizing that statutory provisions should

be read in harmony with each other).

While not bereft of persuasive force, the permissive,

negative inference espoused by Henry lacks the thrust necessary to

overcome the significant hurdle of plain error review. First,

Henry does not even attempt to explain why Congress would wish the

courts to implement § 401 and § 402 differently. A brief review of

the two sections, moreover, reveals that § 402 deals exclusively

with acts that also constitute "criminal offense[s]." Conversely,

§ 401 is more general in scope, and authorizes contempt proceedings

for actions that may not constitute independent violations of law.

Thus, we understand why Congress might have decided to make its

intent explicit regarding multiple punishments under § 402, but not

§ 401, without ever intending inconsistent treatment.

At best, Henry has postulated that there is room for

reasonable minds to disagree whether double jeopardy concerns arise

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under these circumstances. He has not, however, met his burden of

proving that the district court committed plain error in convicting

him of and sentencing him for both drug trafficking and contempt

for violating the law after pretrial release. See United States v.

Mastera, 435 F.3d 56, 62 (1st Cir. 2006) (noting that we cannot

find plain error where the law is unsettled). He has not cited to

any prior case law mandating--or even directly supporting--the

relief that he requests.7 See United States v. Caraballo-

Rodriguez, 480 F.3d 62, 70 (1st Cir. 2007) (holding that plain

error cannot be found in case law absent clear and binding

precedent). Certainly, we cannot say that any error "seriously

impaired the fairness, integrity, or public reputation of judicial

proceedings." Roy, 506 F.3d at 30 (citation omitted). To the

contrary, one might reasonably opine that treating an individual

such as Henry the same as any other offender (save for Guidelines

purposes), ignoring the fact that he procured his pretrial release,

at least in part, by promising to abide by a judicial command to

follow the law but then brazenly engaged in drug trafficking within

forty-eight hours of the magistrate judge's act of leniency, would

7
Indeed, Henry points to our decision in United States v.
Colon-Osorio for the much more limited proposition that we have not
yet definitively resolved this issue adversely to him. See 10 F.3d
41, 43-44 (1st Cir. 1993). If Henry's best case merely holds the
door ajar, even by his own estimation, then his challenge based on
plain error falls well short.

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undermine the "public reputation of judicial proceedings." See id.

Accordingly, Henry's claim of double jeopardy must be rejected.

B. Section 851(b)

Next, Henry maintains that the district court erred by

failing to conduct the colloquy mandated by 21 U.S.C. § 851(b).

Henry reasons that, because he timely objected to the district

court's failure to conduct the colloquy, his substantive objection

to his sentence is subject to harmless error review. We disagree.

The mere failure to conduct a § 851(b) colloquy is harmless error.

United States v. Romero-Carrion, 54 F.3d 15, 18 (1st Cir. 1995).

Thus, any reversible error could only stem from specific problems

related to the predicate convictions. Henry was obligated,

therefore, to specify the basis for his objection to provide the

trial court with an opportunity to consider the issue now presented

on appeal. See United States v. Vargas, 471 F.3d 255, 262-63 (1st

Cir. 2006). At sentencing, Henry's counsel tendered only a general

objection to the absence of a § 851 colloquy. Moreover, it is

transparent from a review of Henry's sentencing memorandum, the

transcript of the sentencing hearing, and the November 29, 2005,

affidavit, submitted by his attorney, William O'Neil, in support of

a continuance, that Henry's actual objections to the application of

the career offender enhancement were limited to the relatedness and

validity of the predicate convictions. The record is utterly

silent concerning the specific objection now raised on appeal.

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Accordingly, we review only for plain error. United States v.

Dickerson, ___ F.3d ___, ___, 2008 WL 192295, at *3 (1st Cir. Jan.

24, 2008).

Pursuant to § 851(b), a district court must "inquire of

the defendant whether he or she contests the validity of any of the

prior enhancing convictions in the information." Dickerson, 2008

WL 192295, at *3; accord 21 U.S.C. § 851(b). A defendant may not,

however, challenge the validity of any prior conviction that

occurred more than five years prior to the date the relevant

information was filed. See 21 U.S.C. § 851(e); accord Dickerson,

2008 WL 192295, at *3 & n.5. Here, Henry concedes that both of the

convictions the court relied upon in enhancing his sentence were

more than five years old when the Information was filed.

Nevertheless, he maintains that § 851(e) is inapplicable because it

does not encompass situations in which a defendant alleges that he

was not the person convicted of the offense charged by the

Information. Although Henry correctly recites the abstract

principle of law, it does not apply under these circumstances.

In his sentencing memorandum to the district court, Henry

acknowledged that he pleaded guilty to both of the offenses alleged

in the Information. Even now, on appeal, he merely argues that the

facts described in the Presentence Report ("PSR") and the

Information are not the same facts he admitted to during his plea

hearing in Connecticut state court in Docket No. 98-0523584-S.

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Crucially, Henry does not deny that he was the individual who

pleaded guilty in Connecticut state court to the drug-related

offense charged in Docket No. 98-0523584-S. Thus, he has quite

possibly failed even to implicate the defense of mistaken identity-

-he certainly has not shown plain error on this basis.

Moreover, he does not assert that the purported

difference was material--for example, by suggesting that the actual

facts of the crime to which he indisputably pleaded guilty are not

subject to the sentencing enhancement imposed by the district

court. Henry might well be correct that the PSR and Information

should have alleged a slightly different set of facts. Yet, he can

hardly expect to obtain relief now, when he failed to raise the

issue of an entirely technical difference in the proceedings below.

See Romero-Carrion, 54 F.3d at 18 (holding that irregularities that

do not affect substantial rights are harmless). Certainly, Henry

has not shown that the Information was so deficient as to fail to

provide notice of the convictions on which the government sought to

rely for the purposes of the sentencing enhancement. See, e.g.,

United States v. Severino, 316 F.3d 939, 943-44 (9th Cir. 2003) (en

banc) (holding that discrepancies in an information render it

inadequate only where the inaccuracies actually mislead the

defendant) (citing United States v. Steen, 55 F.3d 1022, 1028 (5th

Cir. 1995)). Indeed, Henry's principal arguments to the trial

court--that the relevant state court convictions were related and

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that he should be given additional time to contest their validity

in Connecticut state court--demonstrate that Henry fully understood

which convictions were referenced in the Information.

Significantly, we note that the district court provided

Henry with many of the substantive protections contemplated by

§ 851(b). See, e.g., United States v. Campbell, 980 F.2d 245, 252

(4th Cir. 1992) (affirming sentence where the substantive

protections contemplated by § 851 were provided, despite technical

noncompliance). The district court addressed Henry's objections to

the PSR based on the purported invalidity of the Connecticut state

court convictions, as well as his argument that the two predicate

convictions underpinning the career offender enhancement should be

deemed related offenses.8 See id. at 252 n.12 & 13. Whatever else

may be said, Henry has not shown plain error.9

C. Related Offenses

Finally, Henry argues that the district court erred by

rejecting his contention that the two predicate offenses were

"related" under the Sentencing Guidelines, rendering the sentencing

8
Although the district judge rejected Henry's contention that
the two predicate convictions were related, he nevertheless granted
a downward departure on the basis that they overrepresented Henry's
criminal history. It is pellucid from the record that the district
court gave earnest and thoughtful consideration to the nature of
Henry's prior convictions.
9
We likewise reject the ineffective assistance of counsel
claim that Henry has attempted to incorporate into his § 851(b)
claim. See Leahy, 473 F.3d at 410 (rejecting, as a general rule,
ineffective assistance claims on direct appeal).

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enhancement unsustainable. See U.S.S.G. § 4A1.2(a)(2). This

argument, however, is foreclosed by our April 3, 2007, order

granting summary disposition of this ground of appeal. See United

States v. Vigneau, 337 F.3d 62, 67-68 (1st Cir. 2003) (holding that

the law of the case doctrine forbids "relitigation of the legal

issues presented in successive stages of a single case once those

issues have been decided" (internal quotation marks omitted)

(quoting Field v. Mans, 157 F.3d 35, 40 (1st Cir. 1998))); see also

Teti v. Bender, 507 F.3d 50, 56-57 (1st Cir. 2007) (indicating that

the closely related doctrine of res judicata applies to claims

resolved by summary disposition). Moreover, Henry has not

demonstrated--nor even suggested--any unusual circumstances that

would warrant an exception to this general rule. See Vigneau, 337

F.3d at 68. Thus, we reject Henry's third and final claim for

relief.

III. CONCLUSION

For the foregoing reasons, we affirm Henry's convictions

and sentences.

Affirmed.

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