Appellate Law

CA1: waived arguments on contempt and bail

By S. COTUS

U.S. v. Henry, Nos. 06-1298, 06-1299.  This case was originally the subject of an Anders brief.  But, new counsel carried the ball.  The defendant was originally released on bail, subject to a ?don?t commit any crimes? requirement.  He was soon-after arrested for selling drugs.  He was charged, plead guilty, and convicted of both selling drugs and contempt.  Although he raises a double jeopardy argument on appeal, he didn?t raise it below.  So, on plain error view, the First says this isn?t plain error.  It says that United States v. Dixon, 509 U.S. 688 (1993) only says ?that an individual may not be prosecuted for an underlying, substantive offense and criminal contempt in temporally separate proceedings.?  Also, it rejects the notion that it is plain that based on 18 U.S.C. § 3285 (criminal contempt), where Congress explicitly 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, the Court must draw a negative inference. 

Apparently, the District Court didn?t conduct a 21 U.S.C. § 851(b) (prior convictions) colloquy.  The convictions were over five years old, but he didn?t deny that he was the person convicted.  But, the First says that these were waived, too.   

There is a strange ending to this:

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 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

This is strange, because there was no such published opinion that day.  It is hard to figure out exactly what happened.  I am not entirely sure that a summary disposition order (which isn't even unpublished) has ever had such an impact upon a future court of appeals decision.  Maybe someone can check into this. 

Full post as published by Appellate Law and Practice on March 07, 2008 (boomark / email).