Wednesday, July 14, 2010

U.S. v. Broussard, No. 09-10331 (7-14-10) (Kozinski with Thompson and McKeown). How much contempt can a court have for a defendant? Apparently unlimited, because this case deals with how convictions for contempt are classified for sentencing purposes. The reason is that contempt has no statutory maximum and so a court must analogize the contempt to the most applicable offense. First, lets talk about the defendant whom, ordered to stay at a halfway house during a first SR violation, promptly proceeded to attempt to escape. However, an alert ATF agent saw defendant jump into a car, and the agent blocked it. That led to another 18 month sentence for assault on a federal officer and contempt. On SR from that offense, defendant violated conditions yet again. In assessing punishment, should the prior contempt conviction be considered a class A felony (the most serious) because there is no stat max, or should it be considered a class E (the least serious) or something in-between? In sentencing, the court had analogized the contempt to escape, because that is what he tried to do, and sentenced him to 37 months, which would be a class D felony. The 9th had precedent looking at the stat max of the guideline most applicable. Yet, this precedent (Carpenter, 91 F.3d 1282 (9th Cir. 1996)) was pre-Booker. Under Booker, the guidelines are advisory, and so the stat max becomes the stat max of the most analogous offense, which in this case is escape, and five years. A five-year stat max allows for SR punishment of three years, with two in prison. That is what the defendant got here.


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