     Case: 15-31073      Document: 00513660097         Page: 1    Date Filed: 08/31/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                      No. 15-31073                                FILED
                                                                            August 31, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

DARANSKI M. WYNDER,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:15-CR-112-1




Before KING, SMITH, and COSTA, Circuit Judges.
PER CURIAM: *

       Daranski Wynder pleaded guilty of being a felon in possession of a fire-
arm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). At



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                       No. 15-31073
sentencing, the district judge found Wynder’s demeanor disrespectful and,
after announcing the sentence, summarily imposed an additional sixty days’
imprisonment for contempt, stating,
       I know you’re smiling, I know you think it’s just real funny, but it’s
       not. And your continued disrespect, smiling and grinning the way
       that you have been in this court that I’ve observed, just cost you
       an additional 60 days, to run consecutive to [your felon-in-
       possession] sentence of 105 [months].
The court also “note[d] that [Wynder] will not be given credit for time served.”

       Wynder raises two issues on appeal. First, he claims the district court
was without authority to deny him credit for time served. Second, he main-
tains that the court erred in summarily holding him in direct contempt. The
government confesses error as to both issues.

                                              I.
       We review de novo the denial of credit for time served, because it imply-
cates the district court’s jurisdiction, 1 Under 18 U.S.C. § 3585(b)(1), a defen-
dant “shall be given credit toward the service of a term of imprisonment for
any time he has spent in official detention prior to the date the sentence com-
mences . . . as a result of the offense for which the sentence was imposed.”
Although the statute does not explicitly say who is responsible for calculating
the credit, controlling precedent indicates that it is the Attorney General acting
through the Bureau of Prisons. 2 District courts lack the jurisdiction to compute
prior-custody credit at sentencing. 3


       1 United States v. Binion, 981 F.2d 1256, 1992 WL 386836, at *1 (5th Cir. 1992) (per
curiam); see also United States v. Jenkins, 38 F.3d 1143, 1144 (10th Cir. 1994); United States
v. Brann, 990 F.2d 98, 104 (3d Cir. 1993); United States v. Westmoreland, 974 F.2d 736, 737
(6th Cir. 1992); United States v. Checchini, 967 F.2d 348, 350 (9th Cir. 1992).
       2United States v. Wilson, 503 U.S. 329, 334–35 (1992); Leal v. Tombone, 341 F.3d 427,
428 (5th Cir. 2003) (per curiam).
       3   Wilson, 503 U.S. at 334.
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                                 No. 15-31073
      The district court erred in making any determination regarding
Wynder’s eligibility for prior-custody credit. We therefore reform the judgment
of sentence by removing the following language: “The defendant shall receive
no credit for time served.”

                                       II.
      Because Wynder did not contemporaneously object to the summary find-
ing of direct contempt and imposition of additional imprisonment, our review
is for plain error only. “To prevail on plain error review, a defendant must
show that an error occurred, that the error was clear or obvious, and that the
error affected his substantial rights.” United States v. Walker, 742 F.3d 614,
616 (5th Cir. 2014). Even then, “the decision to correct the forfeited error is
within the court’s sound discretion, which will not be exercised unless the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.

      The court summarily found Wynder in contempt without giving him
notice or an opportunity to be heard. That was plain error. A federal court
may punish “[m]isbehavior of any person in its presence or so near thereto as
to obstruct the administration of justice.” 18 U.S.C. § 401(1). The court may
proceed in a summary fashion if the person punished “commits criminal con-
tempt in its presence” and “the judge saw or heard the contemptuous conduct
and so certifies . . . .” FED. R. CRIM. P. 42(b). Nevertheless, even when pro-
ceeding summarily, “notice and at least a brief opportunity to be heard should
be afforded as a matter of course.” United States v. Brannon, 546 F.2d 1242,
1249 (5th Cir. 1977). Before summarily punishing a person for direct con-
tempt, the court must “explicitly warn[]” him and “afford[] him the right of
allocution.” Id.

      The court erred in failing to warn Wynder of the consequences of his
                                       3
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                                        No. 15-31073
continued actions and in not providing him with the opportunity to justify his
behavior. The error was clear or obvious because, under the law of this circuit,
it is not “subject to reasonable dispute” that a court may not summarily find
direct contempt without notice and an opportunity to speak. 4                  The error
affected Wynder’s substantial rights, given that there is a reasonable probabil-
ity the error “affected the outcome of the district court proceedings.” 5 Finally,
given the government’s concession of plain error, we find it appropriate to exer-
cise our discretion to vacate the contempt and the associated sentence of an
additional 60 consecutive days.

       The judgment is AMENDED by deleting the last two sentences of the
paragraph setting out the term of imprisonment, with the result that the total
term of imprisonment is 105 months. The judgment is otherwise AFFIRMED.




      4 Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting United States v. Olano,
507 pU.S. 725, 734 (1993)).
      5   Id. (quoting Olano, 507 U.S. at 734).
                                                  4
