          United States Court of Appeals
                     For the First Circuit


Nos. 14-2335
     14-2337
                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                     CHRISTOPHER B. WRIGHT,

                      Defendant, Appellant.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

          [Hon. George Z. Singal, U.S. District Judge]


                             Before

                 Torruella, Lynch, and Thompson,
                         Circuit Judges.


     Robert C. Andrews, for appellant.
     Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.


                        January 27, 2016
          LYNCH, Circuit Judge.      This case concerns the reading of

a federal sentencing statute, 18 U.S.C. § 3559(a), in the context

of revocation of a federally supervised release imposed after a

criminal contempt conviction.         We conclude that the criminal

contempt here must as a matter of statutory construction be treated

as a Class A felony under 18 U.S.C. § 3559(a).               We therefore

respectfully disagree with the Ninth and Eleventh Circuits.

          Christopher Wright appeals from an order that revoked

his supervised release on underlying convictions of being a felon

in possession of a firearm and criminal contempt, and imposed a

sentence of thirty months of imprisonment.            The district court

found, inter alia, that Wright violated the terms of his release

by breaking state law.        In sentencing, the court classified

criminal contempt as a Class A felony, which carries a maximum

five-year (sixty-month) term of imprisonment.              See 18 U.S.C.

§ 3583(e)(3).      Wright received a sentence of thirty months of

imprisonment.

          Wright    raises   two   issues:   first,   he   challenges   the

court's determination that he violated state law and, second, he

argues that his maximum imprisonment exposure was two years, on

the theory that criminal contempt is a Class C felony under

18 U.S.C. § 3559(a).    We affirm the decision and sentence.




                                   - 2 -
                                I.

          On review of an appeal of revocation of supervised

release, "we consider the evidence in the light most favorable to

the government," and "we recognize the district court's broad legal

power to determine witness credibility."       See United States v.

Portalla, 985 F.2d 621, 622 (1st Cir. 1993).

          In 2007, Christopher Wright pleaded guilty to being a

felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1) and

924(a)(2), and criminal contempt, 18 U.S.C. § 401(3), and was

sentenced to concurrent terms of eighty months of imprisonment on

each offense; three and five years of supervised release on the

charges, respectively, to be served concurrently; and a $200 fine.

One condition of his release was that he "not commit another

federal, state, or local crime."     Another was that he not use a

controlled substance.    In 2012, only a few months after his

supervised release started, Wright was arrested for theft; he

admitted to violating the terms of his release and was sentenced

to twelve months and a day of imprisonment, with twenty-three

months of supervised release for the firearms conviction and

twenty-four months for the criminal contempt conviction.

          Once out on release for a second time, Wright used drugs

and engaged in conduct leading to his arrest.1    On July 20, 2014,


     1   Wright tested positive for drug use on June 26, July 9,
July 24, and September 3, 2014.     In its September 12, 2014,
                             - 3 -
Wright   contacted     Jonathan   Trayes   to    pay   for   hallucinogenic

mushrooms.     Later    that   day,   Justin    Corsaro   drove   Wright    in

Corsaro's pickup truck to Trayes's house where several people,

including Trayes's acquaintance, Harry Fay, were present.                  Fay

testified that he watched from his truck as Trayes approached the

passenger side of Corsaro's vehicle and began speaking with Wright.

After a brief conversation, Wright grabbed Trayes by the arm

through the window and told the driver to "go, go, go."             Fay and

Trayes testified that as the vehicle accelerated forward, Wright

dragged Trayes along for at least fifty feet, dangling outside the

window, as Wright punched Trayes in the head.             While the car was

in motion, Wright released Trayes, whose leg was then run over by

the vehicle.   Trayes was later taken to the hospital for medical

care, including for a wound to his ankle, road-rash, internal

bleeding, and a sprained or broken wrist.

           As a result of this incident, Wright was arrested on

September 11, 2014, and charged with aggravated assault under Maine

law.     Maine defines aggravated assault, in relevant part, as

follows:

           1. A person is guilty of aggravated assault
           if he intentionally, knowingly, or recklessly
           causes:

                A. Serious bodily injury to another; or

petition for revocation, the government charged Wright with a
violation of release based on drug use, which Wright admitted.
Wright does not appeal this basis for revocation.
                              - 4 -
                     B. Bodily injury to another with use of
                     a dangerous weapon; or

                     C. Bodily injury to another under
                     circumstances     manifesting    extreme
                     indifference to the value of human life.
                     . . .

Me. Rev. Stat. Ann. tit. 17-A, § 208 (2014).

             After Wright's arrest, the government filed petitions to

revoke his supervised release on two grounds: use of narcotics and

violation of state law.             Wright challenged only the latter charge.

At the ensuing proceedings, Trayes and Fay testified, and afterward

the parties submitted additional briefing.                   On December 16, 2014,

the court heard additional arguments and then ordered revocation,

finding that Wright had violated two prongs of the Maine aggravated

assault   statute,      as     he    "recklessly   used       a    dangerous       weapon,

[Corsaro's] car," and manifested "extreme indifference to human

life."       Turning to sentencing, the court found that Wright's

underlying criminal contempt conviction was a Class A felony under

18    U.S.C.    §     3559(a),       which    carries    a        maximum     revocation

imprisonment        sentence    of    five    years,    according      to     18   U.S.C.

§ 3583(e)(3). The court considered the relevant sentencing factors

and   then     sentenced       Wright    to    below    the       five-year    maximum,

sentencing him to thirty months of imprisonment.                            This appeal

followed.




                                         - 5 -
                                     II.

             We review the district court's ultimate decision to

revoke    supervised     release   for    abuse   of   discretion,    and   the

underlying finding of a violation of supervised release for clear

error.     United States v. Oquendo-Rivera, 586 F.3d 63, 66–67 (1st

Cir. 2009); United States v. Whalen, 82 F.3d 528, 532 (1st Cir.

1996).     We review the revocation sentence the court imposes for

abuse of discretion, see United States v. Butler-Acevedo, 656 F.3d

97, 99 (1st Cir. 2011), though our review of legal questions is

plenary, United States v. O'Neil, 11 F.3d 292, 294 (1st Cir. 1993).

A.      Aggravated Assault under Maine Law

             Under 18 U.S.C. § 3583(e)(3), a court may revoke a term

of supervised release if the court "finds by a preponderance of

the evidence that the defendant violated a condition of supervised

release."    18 U.S.C. § 3583(e)(3).        Wright challenges the court's

finding that he violated the term of his release that prohibits

commission of a state crime.         He argues that he did not commit

aggravated assault under Maine law.           We agree with the district

court that Wright's conduct during the July 20, 2014, incident

constituted aggravated assault under § 208(1)(B), the "use of a

dangerous weapon" prong of the Maine statute.                   See Me. Rev.

Stat. Ann. tit. 17-A, § 208(1) (2014).            As a result, we need not

reach    whether   his   conduct   also    qualifies    under   the   "extreme

indifference" prong, id. § 208(1)(C).
                                    - 6 -
            Under    applicable   Maine    law,   criminal   liability   for

aggravated assault attaches when a person "recklessly" causes

bodily injury with "a dangerous weapon."          Id. § 208(1)(B).     Maine

courts have recognized that a vehicle can qualify as a dangerous

weapon if the vehicle is "used . . . in a manner capable of

producing death or serious bodily injury."           State v. Pierre, 649

A.2d 333, 334 (Me. 1994); see State v. York, 899 A.2d 780, 783

(Me. 2006); Pierre, 649 A.2d at 334–35 & 334 n.3 (discussing Me.

Rev. Stat. Ann. tit. 17-A, § 2(9)(A), defining "use of a dangerous

weapon").

            Wright asserts that "the circumstances in this case do

not allow finding that the truck was used as a dangerous weapon,"

as "[n]ot every instance of driving away causes the motor vehicle

to be defined as a weapon under Maine law."          Even were that so in

other situations, it is not true here.        Here, Wright grabbed a man

through the passenger-side window of a vehicle and instructed the

driver to "go, go, go," leaving the man dangling as the vehicle

sped forward, before the man was released and run over by the

vehicle.     While    the   victim,   Trayes,     survived   without   life-

threatening injuries, Wright's use of the vehicle was certainly

"in a manner capable of producing death or serious bodily injury."

Pierre, 649 A.2d at 334.     Wright has not even attempted to explain




                                   - 7 -
how the facts could otherwise be viewed.2   There was no error in

the district court's determination that Wright violated the term

of his release proscribing a violation of state law.

B.   Classification of Criminal Contempt

          As a result of his violations of supervised release,

Wright was sentenced to thirty months of imprisonment.3     Wright

contends that his underlying conviction for criminal contempt

should be classified as a Class C felony, not a Class A felony,


     2    Wright does argue, albeit obliquely, that "[d]riving
away, under the circumstances here," does not support a finding of
the mens rea of "recklessness" because it "does not create the
probable result of death or serious bodily injury as the possible
outcome." This is a misstatement of law. Maine law provides that
"[a] person acts recklessly with respect to a result of the
person's conduct when the person consciously disregards a risk
that the person's conduct will cause such a result."      Me. Rev.
Stat. Ann. tit. 17-A, § 35(3)(A); see Stein v. Me. Crim. Justice
Acad., 95 A.3d 612, 618 (Me. 2014). The "disregard of the risk,"
"must involve a gross deviation from the standard of conduct that
a reasonable and prudent person would observe in the same
situation." Me. Rev. Stat. Ann. tit. 17-A, § 35(3)(C). The record
provides more than enough evidence to support the district court's
finding that Wright was subjectively aware of the risk of bodily
injury that he was causing to Trayes -- by holding him through the
passenger-side window and telling the driver to go -- and that
Trayes acted in disregard of the risk. See Stein, 95 A.3d at 619.

     3     Wright conceded a violation for use of narcotics and has
not raised a challenge to that violation.         He also has not
challenged    the   classification   of   the   felon-in-possession
conviction. While it is true that the revocation sentence does
not specify an associated release violation, or delineate between
the contempt conviction and the firearms conviction in sentencing
Wright to a thirty-month imprisonment term, because we find that
criminal contempt is a Class A felony, and the sentence imposed
fell below the maximum for the criminal contempt conviction alone,
we need not address the narcotics violation or firearms conviction
separately.
                               - 8 -
and that he was incorrectly exposed to a maximum prison term of

five years.      In fact, he was sentenced to less than that maximum

prison term.       His argument is that, nonetheless, his maximum

exposure was to no more than two years, and his actual sentence of

thirty months, or two and a half years, was more than that.

            In    revocation   sentencing,   after   considering   the

applicable 18 U.S.C. § 3553(a) factors, the court may revoke a

term of supervised release and "require the defendant to serve in

prison all or part of the term of supervised release authorized by

statute for the offense that resulted in such term of supervised

release."    18 U.S.C. § 3583(e)(3).     However, maximum imprisonment

exposure is limited as follows:

            [A] defendant whose term is revoked under this
            paragraph may not be required to serve on any
            such revocation more than 5 years in prison if
            the offense that resulted in the term of
            supervised release is a class A felony, more
            than 3 years in prison if such offense is a
            class B felony, more than 2 years in prison if
            such offense is a class C or D felony, or more
            than one year in any other case.

Id.   Crimes are classified for purposes of § 3583 pursuant to

18 U.S.C. § 3559(a):

            An offense that is not specifically classified
            by a letter grade in the section defining it,
            is classified if the maximum term of
            imprisonment authorized is--

            (1) life imprisonment, or if the maximum
            penalty is death, as a Class A felony;


                                 - 9 -
          (2) twenty-five years or more, as a Class B
          felony;

          (3) less than twenty-five years but ten or
          more years, as a Class C felony . . . .

Id. § 3559(a).      Although 18 U.S.C. § 401 does not specifically

classify criminal contempt, the district court determined that

criminal contempt was a Class A felony.

          The    proper   §   3559(a)   classification   of   a   criminal

contempt offense is an issue of first impression in the circuit.

After reviewing the text and history of the criminal contempt

statute, 18 U.S.C. § 401, as well as the decisions of our sister

circuits, we have concluded that there is a plain reading of the

statutes at issue, and that reading binds us.      We join the Seventh

Circuit in holding that the statutory maximum for the offense of

criminal contempt, 18 U.S.C. § 401, is life imprisonment, see

United States v. Ashqar, 582 F.3d 819, 825 (7th Cir. 2009).            We

take a second step in reasoning and hold that criminal contempt

should be classified as a Class A felony for the purposes of 18

U.S.C. § 3559(a).    We explain below.

          The text of the criminal contempt statute, 18 U.S.C.

§ 401, does not include a maximum term of imprisonment.4               An



     4    In relevant part, 18 U.S.C. § 401 states, "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, as . . . (3) [d]isobedience or resistance to its lawful
writ, process, order, rule, decree, or command." 18 U.S.C. § 401.
                              - 10 -
abundance of case law suggests that, in such a situation, the court

has wide discretion in imposing a sentence, including up to life

imprisonment.   See, e.g., United States v. Ortiz-García, 665 F.3d

279, 285 (1st Cir. 2011) (joining all sister circuits in finding

that the maximum penalty under 18 U.S.C. § 924(c)(1)(A), which

lacks a statutory maximum, is life imprisonment).             The rationale

for this reading was well stated in United States v. Turner, 389

F.3d 111 (4th Cir. 2004): "[T]he sensible rule of statutory

construction [is that] the absence of a specified maximum simply

means that the maximum is life imprisonment. By declining to limit

the penalty, Congress gives maximum discretion to the sentencing

court," id. at 120.    The Supreme Court's reading of the contempt

statute's language further supports this view. See Frank v. United

States, 395 U.S. 147, 149 (1969) (explaining that, through the

criminal contempt statute, Congress "has authorized courts to

impose penalties but has not placed any specific limits on their

discretion").   Under the plain reading of the statute, the maximum

penalty   for   criminal        contempt    should    therefore      be   life

imprisonment.   Under 18 U.S.C. § 3559(a), that makes it a Class A

felony.   See 18 U.S.C. § 3559(a) (providing that "[a]n offense

that is not specifically classified by a letter grade in the

section   defining   it,   is    classified    if    the   maximum   term   of

imprisonment authorized is -- (1) life imprisonment, or if the

maximum penalty is death, as a Class A felony").
                                   - 11 -
              We   generally   do    not    depart   from    a    statute's   plain

language "absent either undeniable textual ambiguity, or some

other   extraordinary      consideration,        such   as       the   prospect    of

yielding a patently absurd result."              United States v. Fernandez,

722 F.3d 1, 10 (1st Cir. 2013) (quoting Pritzker v. Yari, 42 F.3d

53, 67–68 (1st Cir. 1994)).               We are aware a Ninth Circuit panel

has decided that it would be "unreasonable" to conclude that

Congress intended to classify all criminal contempts as Class A

felonies because this would label "all contempts as serious and

all contemnors as felons."            United States v. Carpenter, 91 F.3d

1282, 1284 (9th Cir. 1996) (per curiam), overruled in part by

United States v. Broussard, 611 F.3d 1069 (9th Cir. 2010).                    Under

the Carpenter approach, courts were required to discern what would

be the "most nearly analogous offense" to the particular contempt

at issue, and then classify the contempt based on the applicable

Guidelines sentencing range for the offense.                 Id. at 1285.         The

Ninth Circuit reasoned that "[t]he applicable Guidelines range

[was] directly linked to the severity of the offense and provide[d]

the best analogy to the classification scheme" as it "focuse[d] on

the upper limit of the district judge's discretion, classifying

the   crime    according   to       the    maximum   sentence      the   judge    was

authorized to impose rather than the sentence actually imposed."

Id.   After United States v. Booker, 543 U.S. 220, 245 (2005), made

the Guidelines advisory, the Ninth Circuit revised Carpenter such
                                      - 12 -
that   now    courts   in   that    circuit     look   to   the   most   analogous

offense's statutorily defined maximum penalty as the upper limit

on a judge's discretion.           See Broussard, 611 F.3d at 1072.

              However, we think the concerns raised by the Ninth

Circuit are not enough to warrant disregarding the plain language

of the classification scheme Congress set forth in 18 U.S.C.

§ 3559(a).      The Ninth Circuit does not assert that the text of

either the criminal contempt statute or § 3559(a)'s classification

scheme is ambiguous.        See Broussard, 611 F.3d at 1071–72 ("Because

criminal contempt has no statutory maximum sentence, 18 U.S.C.

§ 401, under a literal reading of the classification statute, it

would be a Class A felony.").             Unlike the Ninth Circuit, however,

we do not find that classifying criminal contempt as a Class A

felony   is    so   unreasonable     as    to   be   "patently    absurd."    See

Fernandez, 722 F.3d at 10.          Rather, in agreement with the Supreme

Court, we find it not absurd for Congress to have considered the

broad power of contempt "essential to ensuring that the Judiciary

has a means to vindicate its own authority without complete

dependence on other Branches."             Young v. U.S. ex rel. Vuitton et

Fils S.A., 481 U.S. 787, 796 (1987); see Ex Parte Robinson, 86

U.S. (19 Wall.) 505, 510–11 (1873).

              Furthermore, we are not persuaded that Congress could

not have intended to label contempt as a Class A felony because of

the seriousness of the "felon" appellation.                  It is undoubtedly
                                      - 13 -
true that Congress utilizes the classification under § 3559(a) in

other criminal statutes.         See, e.g., 18 U.S.C. § 3013(a)(2)(A)

(requiring higher special assessment fees for felonies than for

misdemeanors); 18 U.S.C. § 3561 ("A defendant who has been found

guilty of an offense may be sentenced to a term of probation unless

-- (1) the offense is a Class A or Class B felony and the defendant

is an individual").       However seemingly harsh those consequences

might be, it is the choice of Congress, and not the courts, to

create sentencing policy.       As no argument has been presented, and

we find none, for why the felon appellation is "patently absurd,"

see Fernandez, 722 F.3d at 10, we decline to adopt the approach of

the Ninth Circuit.5      We note, as well, our holding does not reach

and should not be read to suggest that classification of criminal

contempt as a Class A felony for the purposes of § 3559(a) requires

courts   to     read   that   classification   into   discrete   statutory

schemes.   Such questions are not before us.

              We are also not persuaded by the decision of the Eleventh

Circuit to completely forgo classifying criminal contempt and

avoid setting a maximum potential punishment.          See United States



     5    One judge has suggested that classifying contempt as a
Class   A   felony  raises   Eighth   Amendment   concerns   about
proportionality. See United States v. Love, 449 F.3d 1154, 1158
(11th Cir. 2006) (Barkett, J., concurring).        But the Eighth
Amendment is concerned with proportionality of punishment imposed,
not mere classification, and so we do not find this rationale to
be persuasive as to the classification question before us.
                              - 14 -
v. Cohn, 586 F.3d 844, 845 (11th Cir. 2009) (per curiam).                In Cohn,

the court rejected the Ninth Circuit's approach but reasoned that

nonetheless "[u]niform classification of criminal contempt would

be inconsistent with the breadth" of conduct covered by the

statute.       Id. at 848.       Emphasizing that the Supreme Court has

referred to criminal contempt as an offense "sui generis," and

that   criminal       contempt   is   unlike    other      crimes   classified   by

§ 3559(a) in that contempt may be charged without indictment and

may be prosecuted by appointed private attorneys, the court held

that criminal contempt is a "sui generis offense" that cannot be

classified under § 3559(a).           Id. at 848–49.

            We disagree. To begin, we note that the Eleventh Circuit

does not suggest that under the plain reading of the contempt

statute that the maximum sentence for contempt is less than life

imprisonment.     And we have already rejected the breadth of conduct

covered by the statute as a reason to override its plain language

or that of 18 U.S.C. § 3559(a).                As such, we find no basis to

conclude from the fact that the Supreme Court has referred to an

offense as "sui generis" that Congress could not have intended for

an    offense   with    a   maximum    term    of   life    imprisonment   to    be

classified as a Class A felony for § 3559(a) purposes.                   Congress

may    limit    the    courts'    discretion        when    addressing   criminal

contempt, but so far it has not chosen to do so.                    That contempt


                                      - 15 -
may be charged and prosecuted somewhat differently from other

crimes is also not reason enough to eschew Congress's scheme.

            Moreover and importantly, Congress has not left the

contempt    power    unchecked.        We   share    the    concerns   about    the

potential for untoward and harsh sentences resulting from a Class

A classification.        But we think the answer comes at the next stage

-- at the actual choice of the sentence, after consideration of

all    of   the     relevant     sentencing     factors,       see     18   U.S.C.

§§ 3553(a), 3583(e).6         Here, that is exactly what occurred, as the

district court reviewed the case, noted the maximum of sixty

months, and issued a sentence of half that length.7

            For these reasons, we hold that the maximum penalty for

criminal contempt is life imprisonment.              As such, 18 U.S.C. § 401

is    classified    as    a    Class   A    felony    for     the    purposes    of


      6   Use of and reference to the Sentencing Guidelines is
itself a check on the imposition of unduly harsh sentences. In
revocation, for example, 18 U.S.C. § 3583(e) directs the sentencing
court to consider several factors, including the Sentencing
Guidelines. See 18 U.S.C. § 3583(e) (directing courts to consider
18 U.S.C. § 3553(a)(4) and (a)(5), which refer to the kinds of
sentences and sentencing ranges established by the Guidelines and
any pertinent policy statement issued by the Sentencing
Commission).

      7   Beyond this check, "[t]he answer to those who see in the
contempt power a potential instrument of oppression lies . . . not
in imposition of artificial limitations on the power," but rather,
"in assurance of its careful use and supervision," including
through appellate review. Green v. United States, 356 U.S. 165,
188 (1958), partially overruled on other grounds by Bloom v.
Illinois, 391 U.S. 194 (1968). Congress's many instruments coupled
with the power of the Constitution, provide ample oversight.
                              - 16 -
18 U.S.C. § 3559(a).   We make no law regarding other statutory

schemes beyond the purview of § 3559(a).   Based upon this holding,

we find that there was no error of law and the sentence was

reasonable.

                              III.

          We affirm.




                             - 17 -
