                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4823


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

HEIDI JANELLE SILVER MYERS,

                  Defendant – Appellant.



Appeal from the United States District Court for the Northern
District   of  West   Virginia,  at  Wheeling.     Frederick P.
Stamp, Jr., Senior District Judge. (5:06-cr-00055-FPS-JES-1)


Submitted:    November 18, 2008             Decided:   December 9, 2008


Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William B. Moffitt, III, MOFFITT & BROADNAX, LTD., Alexandria,
Virginia, for Appellant.      Sharon L. Potter, United States
Attorney, Paul T. Camilletti, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Heidi Janelle Silver Myers was found guilty, after a

bench trial, of criminal contempt in violation of 18 U.S.C.A.

§ 401(3) (West Supp. 2008).                The facts adduced at her trial

revealed the following.         Myers was a practicing attorney and was

being investigated for possible fraudulent billing.                           A search

warrant executed at her law office revealed that closed client

case files, a computer server, and a backup hard drive were

missing (hereinafter “missing items”).                      Accordingly, a federal

grand jury issued two subpoenas duces tecum which ordered Myers

to produce the missing items, returnable to the United States

District Court for the Northern District of West Virginia on

December 5, 2006, at 9:00 a.m.

             Myers    failed    to   appear          as   ordered    on   December   5.

Rather,   on   December    4,    2006,         she    retained      William   Benjamin

Moffitt to represent her and he advised her not to appear before

the grand jury the next day, believing he could have the matter

continued,     as    neither    he   nor       his    law    partner,     Pleasant   S.

Broadnax, III, could appear with Myers before the grand jury

that day.      Because Myers failed to appear on December 5 and

because no motion for continuance or other motion was filed that

day, an arrest warrant issued for Myers at approximately 4 p.m.

There was no evidence that either subpoena was unlawful and the


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Government had a “taint or privilege team” designed to protect

the integrity of any confidential information, in light of the

fact    that    closed    client    files       were    sought   in     the    subpoenas.

Myers’    previous       criminal    counsel,          Byron    Craig    Manford,     had

informed Myers that she could be held in contempt if she failed

to comply with the subpoenas.

               As discussed in district court’s post-trial memorandum

finding Myers guilty of criminal contempt, the court made the

following legal and factual findings.                     Criminal contempt seeks

to vindicate the authority of a court by punishing the contemnor

and deterring future litigants from misconduct.                          Buffington v.

Baltimore Co., Md., 913 F.2d 113, 133 (4th Cir. 1990).                                 The

Government proved the elements of offense because: (1) Myers was

served with lawful subpoenas to appear before the federal grand

jury; (2) Myers failed to comply with those subpoenas; and (3)

such failure to comply was willful.                    The court noted the first

two    elements    of     the    offense    were       uncontested.           See   United

States v. McMahon, 104 F.3d 638, 646 (4th Cir. 1997) (discussing

elements).       Regarding the willfulness element, the court relied

on    Licavoli    v.    United    States,       294    F.2d    207,   209     (D.C.   Cir.

1961),    finding        that    willfulness          under    the    statute       merely

requires a deliberate intention to do the act and that advice of

counsel does not immunize that simple intention.                        Id.    The court

noted    that     other    opinions    supported          this    legal       conclusion,

                                            3
citing to United States v. Remini, 967 F.2d 754, 757 (2d Cir.

1992), and United States v. Golfarb, 167 F.2d 735, 735-36 (2d

Cir. 1948).

               The    court    found     no       evidence    that    Myers     had     a   good

faith belief that she was complying with the subpoenas; rather,

there    was    evidence       to     show    she      knew   she    was   disobeying        the

orders.        The court distinguished this Court’s opinion in In re

Walters, 868 F.2d 665, 668 (4th Cir. 1989), from the instant

case.        Regarding the Walters opinion, the district court noted:

(1)     it    was     an     appeal    of     a       civil   contempt     in        bankruptcy

proceeding; (2) Walters relied on United States v. Armstrong,

781 F.2d 700, 706 (9th Cir. 1986), and NLRB v. Berkley Mach.

Works & Foundry Co., 189 F.2d 904, 909 (4th Cir. 1951), for its

reasoning; (3) Armstrong and Berkley Mach. Works rejected the

argument that good faith reliance upon the advice of counsel

vitiated       the    willfulness        element         of   the    crime      of    criminal

contempt.       Thus, the district court concluded that the statement

of law relied on by Myers in the Walters opinion was dictum, and

therefore failed to provide a basis for precluding the finding

of the willfulness element of the offense.

               Alternatively, the district court found that, even if

the advice of counsel was an appropriate legal defense, Myers

failed to produce sufficient evidence in support of it.                                 Rather,

the     court       noted,    Moffitt’s        testimony       related       only      to    the

                                                  4
problems         he     and    his     law      partner      Broadnax          encountered          in

attending        the     grand    jury       hearing     without      Myers.           The    court

observed      that,       if     Myers    was     concerned         about      attorney-client

privilege issues, there was no evidence presented that she had

advised Moffitt or his partner that the Government had secured a

taint or privilege team in an attempt to address this issue.

              Moreover, the court found that there was insufficient

evidence that Myers’ “disobedience of the grand jury subpoenas

was    even      undertaken       in     good    faith    reliance        on     her    counsel’s

advice.”         (JA 378).           Rather, the court found that there was

sufficient            evidence     that       Myers      knew    both       as     a        attorney

practicing criminal defense work and as a result of the advice

from her former criminal counsel, Manford, that she had options

other than simply disobeying the order of the court, i.e. to

file   motions         seeking       relief     from    or    the    postponement            of   the

court’s     orders.            Indeed,    the     court      noted    that       when       Broadnax

called the district court on December 5, he was told by someone

in    the   judge’s       chambers        that    the    judge      preferred          to    have    a

motion      to    address        any     such     issues.           The     court       found       no

evidentiary support for the fact that either Myers herself, or

counsel, lacked the ability to file a motion with the court—by

electronic        filing,        facsimile,       or     otherwise—and           bring       to   the

court’s attention the issues now raised.



                                                 5
                 In its memorandum opinion denying Myers’ motion for a

judgment of acquittal, the district court reiterated its above

findings regarding Myers’ good faith argument.                            The court found

that “any reliance by Myers on counsel’s advice not to appear

because of a scheduling conflict . . . was not made in good

faith and therefore does not negate willfulness.”                            (JA 389).

                 The    court      also      rejected    Myers’      argument        that    her

plausible but mistaken alternative of obtaining a continuance

negated      the       element     of   willfulness.           The   court    found     Myers’

reliance on McMahon, 104 F.3d at 642-45, for this proposition,

was    misplaced.            The     court    found     that    McMahon      stood    for     the

proposition that the court order at issue must be sufficiently

clear as to provide adequate notice to the defendant.                                       Here,

there was simply no question that the two subpoenas at issue

provided Myers with definite, clear, and specific notice of what

was    required         of    her.        Moreover,      the    court     noted      that    the

testimony at trial revealed that Moffitt told Myers he would try

to    get    a    continuance        for     her   mandated     appearance        before     the

grand       jury—but      that     Moffitt     never     told    her    he   had     done    so.

Critically,        the       court    found    that     there    was    no   evidence       that

Myers “believed a continuance had been effectuated, [therefore]

her argument must fail because no evidence presented at trial

indicates anything about what Myers believed.”                          (JA 391).



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              The     probation           officer        made          the        following

recommendations in the presentence report (“PSR”).                           It found the

base    offense     level    was    14,   under       U.S.   Sentencing          Guidelines

Manual (“USSG”) § 2J1.2 (2007).                 The probation officer used the

obstruction of justice base offense level, finding that it was

the    most   analogous      guideline.         With     Myers’    criminal         history

category of I, this yielded a sentencing range of 15-21 months.

              The    district         court      conducted         a       comprehensive

sentencing     hearing.        Dr.     Susan     J.    Fiester,        a   psychiatrist,

testified     for   the     defense    regarding        Myers’    bipolar         disorder.

The court addressed Myers’ seventeen objections to the PSR, but

ultimately     adopted      the    findings      in    the     report.           The   court

grouped the objections into three categories.                      First, the court

found that Myers’ base offense level was properly calculated

using the obstruction of justice guideline under USSG § 2J1.2,

rather than using the failure to appear by a material witness

guideline, following the guidance of USSG § 2J1.1 (n.1).                                See

id. (“In certain cases, the offense conduct will be sufficiently

analogous to § 2J1.2 (Obstruction of Justice) for that guideline

to     apply.”).      Second,       the    court       found     that      the     contempt

conviction should be classified as a Class A felony, rather than

a class B misdemeanor.             Third, the court found it had authority

to punish the contempt offense with both a fine and a term of

imprisonment.

                                            7
              Thus, the court concluded “I do not intend to depart

from    the    Guidelines      as     determined       by    the    probation        officer,

[but] I do intend to impose a variance sentence.”                                (JA 527).

The court determined it would “impose a variance sentence of

three offense levels below the Guideline sentence”                               (JA 527),

giving Myers a total offense level of 11.                         (Id.).     This yielded

a sentencing range of 8-14 months.                          The court then reviewed

possible mitigating factors, expressly considered the factors in

18 U.S.C.A. § 3553(a) (West 2006 & Supp. 2008), listened to the

arguments      of    counsel,      and     sentenced    Myers       to   four    months    of

imprisonment.

              Myers       timely    appeals,      raising     the     following       issues:

(1)    whether      the    district      court    erred      by    finding   that      Myers’

reliance on counsel’s advice was not an affirmative defense to

criminal contempt;           (2)    whether district court erred in finding

that Myers’ good faith pursuit of a mistaken though plausible

alternative did not apply where counsel sought a continuance for

Myers’    grand       jury    appearance         due   to     a    variety      of   exigent

circumstances; (3) whether the district court erred in using the

obstruction of justice guideline; (4)                       whether      the         district

court erred in applying the 18 U.S.C.A. § 3553(a) factors by

failing       to    consider       her     post-offense       conduct,       her     bipolar

disorder, her reliance on advice of counsel, and the disparity

between       her     sentence       and     sentences        of      similarly-situated

                                              8
defendants; and (5) whether the district court erred in finding

that the criminal contempt offense was a Class A felony. For the

reasons that follow, we affirm.

              First, Myers argues that her good faith reliance on

counsel’s advice not to appear as ordered creates a defense to

her contempt conviction.           The parties agree we review this issue

de   novo.       Armstrong,    781   F.2d     at   706.   We    agree     with    the

district court that Myers’ reliance on counsel’s advice to fail

to appear as ordered, does not negate the willfulness element of

the contempt offense.             Berkely Mach. Works, 189 F.2d at 909;

Remini, 967 F.2d at 757.

             Second, Myers alleges that her good faith pursuit of a

mistaken     though   plausible      alternative—where       counsel      sought   a

continuance for Myers’ grand jury appearance due to a variety of

exigent      circumstances—creates       an    affirmative      defense    to    the

crime.     As noted by the district court, however, Myers reliance

on this argument is misplaced.                As our case law makes clear,

McMahon, 104 F.3d at 642-45, this would only be a defense if the

subpoenas       themselves    were   unclear.       Moreover,    both     of    these

issues    are    undercut    by   the   district     court’s    alternative      and

detailed factual findings that it did not believe Myers had a

legitimate, good faith belief in the advice from her counsel.

See United States v. Greyhound Corp., 508 F.2d 529, 532 (7th

Cir. 1974).

                                         9
               Third, Myers argues that the district court erred by

using    the     obstruction       of    justice       base    offense    level      for    her

crime.      As noted by the parties, however, there is no specific

base offense level for criminal contempt.                           Rather, the offense

of contempt is located in USSG § 2J1.1, which in turn, cites to

“§ 2X5.1 (Other Offenses).”                    Id.         Section 2X5.1 directs that

“[i]f the offense is a felony for which no guideline expressly

has     been      promulgated,          apply        the     most     analogous      offense

guideline.”           Id.    Application Note 1 to USSG 2J1.1 states that

“[i]n certain cases, the offense conduct will be sufficiently

analogous to § 2J1.2 (Obstruction of Justice) for that guideline

to apply.”            USSG § 2J1.1 (n.1).             Reference to USSG 2J1.2, for

obstruction of justice, reveals a base offense level of 14.                                  We

do    not   find       the   district     court       erred    by     applying    the      base

offense level for obstruction, in light of the above guidelines

sections, and based on the district court’s factual findings

that     Myers     failed     to    appear      in     an     attempt    to    impede       the

discovery        of    her   alleged      overbilling          charges.        See    United

States v.        Lambert,     994       F.2d    1088,       1091-92     (4th   Cir.     1993)

(recognizing circumstances where an offense conduct may not fit

precisely into any one Sentencing Guidelines section).

               Next, Myers alleges that the district court erred in

applying the factors in 18 U.S.C.A. § 3553(a).                             Following the

Supreme Court’s opinion in United States v. Booker, 543 U.S. 220

                                               10
(2005), a district court must engage in a multi-step process at

sentencing.      First, it must calculate the appropriate advisory

Sentencing      Guidelines    range.            It    must     then   consider        the

resulting range in conjunction with the factors set forth in

§ 3553(a)      and   determine     an        appropriate      sentence.         United

States v.     Davenport,     445   F.3d      366,     370    (4th   Cir.     2006).    We

review a district court’s imposition of a sentence for an abuse

of discretion.       Gall v. United States, 128 S. Ct. 586, 596-97

(2007); United States v. Pauley, 511 F.3d 468, 473 (4th Cir.

2007).      We find no abuse of discretion in Myers’ sentencing.

              Finally, we find no reversible error in the district

court’s decision to adopt the probation officer’s finding that

Myers’ contempt conviction was a Class A felony.                       (JA 525-26).

The classification of an offense as a felony or a misdemeanor is

a question of law we review de novo.                  United States v. Bennett,

472 F.3d 825, 831 (11th Cir. 2006).                   The Supreme Court has not

characterized contempt as either a felony or misdemeanor.                             See

United States v. Holmes, 822 F.2d 481, 493 (5th Cir. 1987).                           The

district court relied on United States v. Mallory, 525 F. Supp.

2d   1316    (S.D.   Fla.   2007),      to     conclude      that   Myers’    contempt

offense was a Class A felony.                 Myers    wishes us to follow the

opinion in United States v. Carpenter, 91 F.3d 1282 (9th Cir.

1996).



                                          11
             We     decline      to    adopt        the     opinion     of    Mallory       or

Carpenter,        but   reject       Myers’     argument       in     this    case.        In

Carpenter the Ninth Circuit held that “criminal contempt should

be     classified       for    sentencing           purposes         according     to     the

applicable        Guidelines     range        for    the      most    nearly      analogous

offense.”      Carpenter, 91 F.3d at 1285.                     The Court went on to

hold    that      the   defendant       was        properly     sentenced        under    the

obstruction of justice guideline.                   Here, the district court used

the    obstruction       of    justice        guideline        and     sentenced         Myers

substantially below that range.                    We note that Myers’ four-month

sentence is within the same zero-to-six months range that she

would have received if, as Myers’ argues, her contempt violation

was considered a misdemeanor and she was sentenced using the

failure to appear by a material witness guideline under USSG

§ 2J1.5(a)(2).

            Accordingly, we affirm Myers’ conviction and sentence.

We     dispense     with      oral    argument         as     the     facts    and       legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                                  AFFIRMED




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