 United States Court of Appeals
          FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued November 15, 2010           Decided December 28, 2010

                         No. 09-3056

                     IN RE: SEALED CASE
                            ______

         Appeal from the United States District Court
                 for the District of Columbia
                     (No. 1:00-cr-00248)
                           ______

     Tony Axam, Jr., Assistant Federal Public Defender, argued
the cause for the appellant.
    Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for the appellee.
    Before: GINSBURG, HENDERSON and KAVANAUGH, Circuit
Judges.
     KAREN LECRAFT HENDERSON, Circuit Judge: The district
court summarily convicted the appellant of criminal contempt
and imposed punishment of twelve months’ imprisonment after
the appellant uttered a vulgarity directed to the court in open
court. The appellant appeals his conviction and sentence,
arguing the evidence is insufficient to find him guilty of
contempt, the sentence is unreasonable in relation to his actions
and, because the sentence exceeds six months, he is entitled to
a jury trial. We affirm the contempt conviction but reduce the
appellant’s sentence to six months’ imprisonment.
                                2

                                I.
     In August 2000, the appellant pleaded guilty to one count of
possessing with intent to distribute five grams or more of
cocaine base, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(iii), and one count of aiding and abetting in connection
with the possession count, in violation of 18 U.S.C. § 2. In July
2006, the district court sentenced him to time served plus five
years of supervised release. In March 2009, the appellant
pleaded guilty to second degree murder in the District of
Columbia Superior Court, for which conviction he was
sentenced to twenty-six years’ imprisonment followed by five
years of supervised release. The appellant’s commission of
second degree murder violated the terms of his supervised
release and, at a hearing on May 18, 2009, the district court
revoked his supervised release and sentenced him to thirty-six
months’ imprisonment to run consecutively to his sentence for
the murder conviction. During the hearing, the appellant
repeatedly attempted to interrupt the district judge and, after the
judge imposed his sentence, exclaimed “Fuck y’all.” Sentencing
Hr’g Tr. at 20, Crim. No. 00-248 (D.D.C. May 18, 2009) (Hr’g
Tr.). The judge immediately found “that [the appellant] ha[d]
committed contempt of court by uttering a profanity at me in my
presence, in my sight, and in a calculated way” and sentenced
the appellant to an additional year of imprisonment. Id. at 20-
21.
                                II.
     A federal court is empowered to punish criminal contempt
by fine or imprisonment. 18 U.S.C. § 401. Criminal contempt
includes “[m]isbehavior of any person in its presence or so near
thereto as to obstruct the administration of justice.” Id.
§ 401(1); see also Fed. R. Crim. P. 42(b) (“Notwithstanding any
other provision of these rules, the court (other than a magistrate
judge) may summarily punish a person who commits criminal
contempt in its presence if the judge saw or heard the
                               3

contemptuous conduct and so certifies . . . .”). Criminal
contempt requires: “misbehavior of a person, in or near to the
presence of the court, which obstructs the administration of
justice, and which is committed with the required degree of
criminal intent.” United States v. McGainey, 37 F.3d 682, 684
(D.C. Cir. 1994). The appellant admits he misbehaved in the
presence of the court but maintains he neither obstructed the
administration of justice nor acted with criminal intent. “In
deciding whether the evidence is sufficient to support a
contempt conviction, we use the familiar standard for any
criminal conviction, asking whether ‘a fair-minded and
reasonable trier of fact [could] accept the evidence as probative
of a defendant’s guilt beyond a reasonable doubt.’ ” In re
Holloway, 995 F.2d 1080, 1082 (D.C. Cir. 1993) (alteration in
original) (quoting In re Joyce, 506 F.2d 373, 376 (5th Cir.
1975)), cert. denied, 511 U.S. 1030 (1994).
     The appellant argues he did not obstruct the hearing because
“the proceedings were concluded and no other business was
being conducted” when he uttered the offensive statement.
Appellant’s Br. 12. We begin by rejecting the premise that an
obstruction of justice cannot occur in the absence of ongoing
court proceedings or once the proceedings have concluded.
Misbehavior in the courtroom, at any time, carries the potential
to obstruct justice. In the past, some courts have suggested that
a verbal insult unaccompanied by a “material disruption or
obstruction” of judicial proceedings cannot support a criminal
contempt conviction. E.g., United States v. Seale, 461 F.2d 345,
369 (7th Cir. 1972); see also id. (“[M]ere disrespect or affront
to the judge’s sense of dignity will not sustain a citation for
contempt.”). But see id. at 369-70 (“The line between insult and
obstruction, however, is not clearly delineated, and at some
point disrespect and insult become actual and material
obstruction.”). In so holding, those courts often relied on the
Supreme Court’s statement that “before the drastic procedures
of the summary contempt power may be invoked . . . there must
                                4

be an actual obstruction of justice” in the form of “[a]n
obstruction to the performance of judicial duty.” In re
McConnell, 370 U.S. 230, 234 (1962) (quotation marks and
citation omitted). We agree with the Second Circuit, however,
that “[t]o read McConnell as holding that verbal ‘misbehavior’
alone cannot be punished under Section 401(1) may be a
considerable overreading of that decision.” United States v.
Marshall, 371 F.3d 42, 47 (2d Cir. 2004). In McConnell, the
trial judge barred (erroneously, as it turned out) a line of
questioning and summarily convicted of criminal contempt the
plaintiff’s lawyer when the lawyer, concerned about preserving
the issue for appeal, persisted in the prohibited questioning. As
the Second Circuit noted in Marshall, it is “less than clear” that
any verbal misbehavior occurred in McConnell. 371 F.3d at 47;
see also McConnell, 370 U.S. at 236 (acknowledging
importance of judge “hav[ing] the power to protect himself from
actual obstruction in the courtroom” but explaining “it is also
essential to a fair administration of justice that lawyers be able
to make honest good-faith efforts to present their clients’
cases”). The lawyer’s “conduct might not, therefore, violate
Section 401(1) unless it constituted a literal obstruction of
justice, one type of misbehavior.” Marshall, 371 F.3d at 47. By
contrast, the appellant plainly and admittedly engaged in verbal
misconduct. An outburst of foul language directed at the court
is intolerable misbehavior in the courtroom and falls within the
prohibition of section 401(1) and Federal Rule of Criminal
Procedure 42(b). See Marshall, 371 F.3d at 48 (“[A] verbal
attack can be so unnecessary and so insulting to judicial
authority as to constitute, without prior warning, contempt.”).
Such conduct is inherently disruptive. As the First Circuit has
explained:
         One must appreciate that courtrooms, especially in
         criminal cases, are theaters of extreme
         emotion—stoked by the facts of the alleged
         crimes, the tensions of striving lawyers and hostile
                                5

         cross examination, and the fearsome stakes.
         Every trial judge knows how easy it is for matters
         to get out of hand. Indeed, the black robe, the call
         “all rise,” and the deference exacted by judges
         have their main warrant in the need for order. By
         its tendency to undermine order, a party’s
         deliberate cursing of a judge in open court can
         depending on the circumstances readily be viewed
         as obstructive.
United States v. Browne, 318 F.3d 261, 266 (1st Cir. 2003), cert.
denied, 540 U.S. 907 (2003), reh’g denied, 540 U.S. 1070
(2003). We agree with the Second Circuit’s reading of
McConnell and endorse the First Circuit’s vivid but accurate
description of the reasoning behind a court’s insistence on
immediately quelling and sanctioning misbehavior to maintain
order.
     We also reject the appellant’s contention that he did not
intend to obstruct the administration of justice. His outburst was
“calculated, egregious, in the presence of, and directed at, the
court.” Marshall, 371 F.3d at 46. “It was self-evidently
intended to show contempt for the court . . . .” Id.; see also
Browne, 318 F.3d at 266 (“Directed as it is to conduct within the
courthouse, we have no trouble reading [section 401(1)] to
embrace any deliberate misconduct that may foreseeably disrupt
or interfere with court proceedings, whether or not that was the
subjective intent of the contemnor.”). We accordingly uphold
the appellant’s criminal contempt conviction under Section
401(1).
    Although we affirm his contempt conviction, we conclude,
as we must, that his twelve-month sentence cannot be upheld.
The court cannot sentence a defendant to a period of
incarceration exceeding six months without a jury trial unless
the defendant has waived his right thereto. Codispoti v.
Pennsylvania, 418 U.S. 506, 511-12 (1974). We are authorized,
                                  6

however, to reduce the sentence ourselves. See Holloway, 995
F.2d at 1087 (court of appeals has authority to revise sentence
for criminal contempt). Because the record manifests that the
district judge intended to impose the maximum sentence
consistent with his summary finding of criminal contempt,
which sentence he mistakenly believed to be one year, there is
no reason for remand. Compare Hr’g Tr. 20-21 (“The court
finds that [the appellant] has committed contempt of court by
uttering a profanity at me in my presence, in my sight, and in a
calculated way.”) with Fed. R. Crim. P. 42(b) (“[T]he court . . .
may summarily punish a person who commits criminal contempt
in its presence if the judge saw or heard the contemptuous
conduct and so certifies . . . .”). Contrary to the appellant’s
argument, moreover, a six-month sentence is substantively
reasonable under the circumstances. See, e.g., Marshall, 371
F.3d at 48-49.1
    Accordingly, we affirm the appellant’s criminal contempt
conviction and reduce his sentence therefor to six months’
imprisonment, to be served consecutively to the twenty-six
years’ imprisonment imposed by the superior court on March 6,
2009 for second degree murder, as well as to the thirty-six
months’ imprisonment imposed by the district court on May 18,
2009 for violation of supervised release.
                                                         So ordered.




     1
       The appellant also claims that he has a right to allocute before
being sentenced for criminal contempt. Rule 42(b), however, was
specifically “amended to make it clear that a court may summarily
punish a person for committing contempt in the court’s presence
without regard to whether other rules, such as Rule 32 (sentencing
procedures), might otherwise apply.” Fed. R. Crim. P. 42(b) advisory
committee’s note (2002 Amendments).
