                                                                            FILED
                           NOT FOR PUBLICATION                               NOV 23 2009

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-10270

             Plaintiff-Appellee,                 D.C. No. 2:07-cr-00005-NVW-1

                                                                     *
  v.                                             MEMORANDUM

GUADALUPE CONTRERAS-RUIZ,

             Defendant-Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                            Submitted August 31, 2009 **
                             San Francisco, California

Before: B. FLETCHER, and KLEINFELD, Circuit Judges, and DUFFY, ***
District Judge.



       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

       ***
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
      Guadalupe Contreras-Ruiz appeals a final judgment and sentence of three

months of imprisonment for criminal contempt in violation of 18 U.S.C. § 401 entered

by the United States District Court for the District of Arizona pursuant to the summary

contempt provision of Rule 42(b) of the Federal Rules of Criminal Procedure. The

three-month sentence for contempt was contained in the same judgment as Contreras-

Ruiz’s conviction and sentence for reentry after deportation. Though he appeals from

the entire judgment, his arguments are directed solely to the summary contempt

conviction and the sentence imposed for it.

      On April 9, 2008, Contreras-Ruiz in a jury verdict was found guilty of reentry

subsequent to deportation.     At his sentencing on June 2, 2008, Contreras-Ruiz

engaged in behavior that seriously disrupted the hearing. Specifically, he repeatedly

ranted that he would not be sentenced and shouted over the judge and other

individuals in the courtroom. After repeatedly warning Contreras-Ruiz that he would

be held in contempt if he did not stop this behavior, Judge Wake summarily held him

in contempt when he continued disrupting the proceedings.             Judge Wake also

instructed the court reporter not to record the defendant’s further interruptions. In this

appeal, neither party has suggested that the failure to record appellant’s words affected

in any way his rights or the outcome of this case.




                                            2
         A district court’s use of summary contempt procedures under F ED. R. C RIM. P.

42(b) is reviewed for abuse of discretion. United States v. Cohen, 510 F.3d 1114,

1119 (9th Cir. 2007). Where a district court did not fully consider the relative

appropriateness of summary and plenary adjudication of contempt, as here, this Court

must evaluate independently the need for summary procedures. United States v.

Glass, 361 F.3d 580, 587 (9th Cir. 2004) (citation omitted).

         Courts have inherent power to punish contempt of their authority. Ex parte

Terry, 128 U.S. 289, 302-03 (1888). Criminal contempt is defined under 18 U.S.C.

§ 401:

         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;
         (3) Disobedience or resistance to its lawful writ, process, order, rule,
         decree, or command.

Federal Rule of Criminal Procedure 42 establishes two separate procedures for the

adjudication of contempt. F ED. R. C RIM. P. 42. Section (a) sets forth procedures for

disposition after notice. Id. 42(a). Section (b) sets forth procedures for summary

disposition of contempt. Id. 42(b).

         Under F ED. R. C RIM. P. 42(b), a district court is authorized to:




                                              3
       summarily punish a person who commits criminal contempt in its
       presence if the judge saw or heard the contemptuous conduct and so
       certifies . . . . The contempt order must recite the facts, be signed by the
       judge, and be filed with the clerk.

Id. The requirement that the contempt be committed in the court’s presence is met

only “where all of the essential elements of the misconduct are under the eye of the

court [and] are actually observed by the court.” Pounders v. Watson, 521 U.S. 982,

988 (1997) (per curiam) (quotation omitted). In this case, the district court saw and

heard the contemptuous conduct and so certified. Further, the district court’s order

set out the contemptuous conduct in more than sufficient detail.

       It is better practice for the judge to give the defendant a reasonable opportunity

to speak for a reasonable amount of time and to have it recorded, so that a reviewing

court can review the exact words. Nonetheless, the district court acted within its

discretion when it convicted Contreras-Ruiz using the summary contempt procedure

of F ED. R. C RIM. P. 42(b).

       AFFIRMED.




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