Sentencing for contempt; Guidelines range calculation; USSG § 2J1.1; Whether contempt for failing to report to prison as ordered should be treated as a felony or a misdemeanor for purposes of calculating the guidelines range; §§ 2X5.1 n 3 & 2X5.2; 18 USC § 401; § 3146; § 3553(a) factors

The court held that defendant-Owens’s contempt for failing to report to prison to serve her sentence on another conviction should be treated as a felony for purposes of calculating the guidelines and thus, the district court correctly calculated her guidelines range. The district court sentenced her to 12 months for conspiring to distribute controlled substances. It allowed her 60 days to make arrangements for her family and gave her a specified date to report to prison. She failed to report, and the district court later charged her with criminal contempt. At her combined plea and sentencing hearing, she pled guilty to contempt, and her counsel argued that she should be sentenced to 30 days. The government sought a four-month sentence. The district court calculated a guidelines range of 6-12 months and imposed a sentence of 11 months to be served consecutively with the 12 months for the conspiracy conviction. Owens argued on appeal that it miscalculated the guidelines range. The court first explained that although most federal offenses have an applicable sentencing guideline including the base-offense level for that offense and characteristics that can raise or lower that level, this is not true for the contempt guideline, § 2J1.1, which “simply provides: ‘Apply §2X5.1 (Other Offenses).’” Section 2X5.1 states “that, if the defendant’s offense is a felony without an express guideline, then we should ‘apply the most analogous guideline’ (if there is one). But if the defendant’s offense is not a felony, an application note tells us, then we should apply §2X5.2—which prescribes a base offense level of ‘6’ for Class A misdemeanors.” The court rejected the government’s argument that contempt is always a felony. Instead, it held that the determination must be made on a case-by-case basis. It found that Owens’s conduct was “identical to conduct that the code treats as felonious” – § 3146. Thus, it found that her contempt offense qualified as a felony for purposes of calculating her guidelines range. As a result. the district court correctly treated it as felonious and applied §2J1.6. The court also upheld the district court’s analysis of the § 3553(a) factors as “exemplary.” Affirmed.