                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0389n.06

                                           No. 12-3789

                          UNITED STATES COURT OF APPEALS                                 FILED
                               FOR THE SIXTH CIRCUIT                                 Apr 18, 2013
                                                                               DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )   ON APPEAL FROM THE UNITED
v.                                                )   STATES DISTRICT COURT FOR THE
                                                  )   NORTHERN DISTRICT OF OHIO
MAURTEZ L. PRINCE,                                )
                                                  )
       Defendant-Appellant.                       )



       Before: NORRIS, COOK, and McKEAGUE, Circuit Judges.


       COOK, Circuit Judge. Maurtez Prince appeals the sufficiency of the evidence supporting

his 18 U.S.C. § 401(3) contempt-of-court conviction and the substantive reasonableness of the thirty-

day sentence imposed for the violation. For the following reasons, we AFFIRM.


                                                 I.


       Prince attended a friend’s sentencing in federal district court. Despite passing three signs

warning about electronic device use in courtrooms, Prince entered a district courtroom with his

phone activated. Deputy U.S. Marshal Kasulones saw the phone and instructed Prince to turn it off.

Despite this warning, Kasulones later observed Prince texting during the hearing. Deputy Kasulones

took Prince’s phone and told him to retrieve it from the Marshal’s office. There, Deputy Kasulones

told Prince of the Marshal’s concern that the proceedings will be photographed or recorded. Prince
No. 12-3789
United States v. Prince


volunteered that he photographed his friend during the sentencing hearing. Deputy Kasulones found

the picture on Prince’s phone, emailed it to himself, printed it, and deleted it.


       Upon learning of the photo being taken, the district court issued an order requiring Prince to

show cause why it should not hold him in criminal contempt. After hearing testimony, the court

determined that Deputy Kasulones instructed Prince to turn the phone off. The court then found

Prince guilty of criminal contempt, in violation of 18 U.S.C. § 401, stating that “the most troubling

part” was that Prince continued using his phone despite Kasulones’s instruction to stop.


       At Prince’s sentencing, the district court considered the nature and circumstances of the

offense and Prince’s personal history and characteristics and determined that Prince violated a posted

court rule. Although the court acknowledged that a visitor could overlook the posted signs, it found

that Prince disregarded Kasulones’s instruction to turn off his phone, noting that Prince had pending

state-court violations: two for failure to appear and another felony sentence for unlawfully

possessing a Ruger pistol loaded with fourteen rounds of ammunition and eight bags of marijuana.

After recognizing the inapplicability of the sentencing guidelines to contempt proceedings, the

parties agreed that a sentence between zero and six months would be an appropriate range. The court

sentenced Prince to thirty days.


                                                 II.


A. Sufficiency of the Evidence


                                                 -2-
No. 12-3789
United States v. Prince


        Prince argues that the evidence is insufficient to support his criminal contempt conviction

because he did not intentionally or deliberately defy a specific court order. We review Prince’s

conviction to determine “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). 18 U.S.C. § 401(3) grants

federal courts the “power to punish by fine or imprisonment, or both, at its discretion, such contempt

of its authority, including . . . (3) disobedience or resistance to its lawful writ, process, order, rule,

decree, or command.”1 We therefore review if any rational trier of fact could have found that Prince

“acted with a willfulness that implies a deliberate or intended violation,” Downey v. Clauder, 30

F.3d 681, 686 (6th Cir. 1994) (quoting In re Chandler, 906 F.2d 248, 250 (6th Cir. 1990)), of a

“specific, clear, and unequivocal court order.” Downey, 30 F.3d at 686.


        Ample evidence supports the district court’s contempt finding. Deputy Kasulones testified

that he “instructed [Prince] to make sure [his cell phone] was shut off, and [Prince] acknowledged

that, yes, it will be shut off.” (Show Cause Hr’g. Tr. at 7:1-2). The court credited Kasulones’s

testimony and we may not “weigh the evidence presented [or] consider the credibility of witnesses.”

United States v. Graham, 622 F.3d 445, 446 (6th Cir. 2010). Furthermore, Prince acknowledged

the interaction with Deputy Kasulones and that he “knew [the phone] wasn’t to be disruptive to the



        1
         The district court sentenced Prince for violating 18 U.S.C. § 401, but did not specify which
exact subsection. The government concedes that Prince did not violate § 401(1), and analyzes the
case as arising under § 401(3), as do we.

                                                  -3-
No. 12-3789
United States v. Prince


courtroom,” although he disputed whether the order was to turn off the phone or just to silence it.

(Show Cause Hr’g. Tr. at 34:3-20).


         Prince first challenges the specificity of Kasulones’s instruction, arguing that substantial

uncertainty surrounded it. To be guilty of contempt, the violated direction or order must first be clear

and specific. Downey, 30 F.3d at 686. Prince bears a “very heavy burden,” United States v. Abboud,

438 F.3d 554, 589 (6th Cir. 2006), because we resolve all credibility issues in favor of the verdict,

United States v. Salgado, 250 F.3d 438, 446 (6th Cir. 2001), and the district judge credited

Kasulones’s command as clear and specific, and we do not weigh the evidence or consider witness

credibility.


         Prince next claims that he lacked the required intent to defy the command. See Downey, 30

F.3d at 686 (requiring willfulness that implies a deliberate or intended violation). The district court

found that Prince willfully ignored the command. Our review confirms that although Prince may

have missed the signs, Deputy Kasulones’s later order put Prince on notice of the cell phone

prohibition.    Nevertheless, he admitted to texting and photographing after acknowledging

Kasulones’s order, demonstrating willful disobedience. That suffices to sustain his § 401(3)

conviction, and a rational trier of fact could find the elements of the crime beyond a reasonable

doubt.


B. Substantive Reasonableness of the Sentence



                                                 -4-
No. 12-3789
United States v. Prince


          Prince next argues that his thirty-day sentence is substantively unreasonable for this

contempt. “A sentence is substantively unreasonable if the sentencing court arbitrarily selected the

sentence, based the sentence on impermissible factors, failed to consider pertinent § 3553(a) factors,

or gave an unreasonable amount of weight to any pertinent factor.” United States v. Cunningham,

669 F.3d 723, 733 (6th Cir. 2012) (citing United States v. Collington, 431 F.3d 805, 808 (6th Cir.

2006)).


          We review a non-guideline sentence for abuse of discretion, see United States v. Martin, 251

F. App’x 979, 982 (6th Cir. 2007), reversing only if we are “‘firmly convinced’ that the district court

committed clear error.” Stampley v. State Farm Fire & Cas. Co., 23 F. App’x 467, 470 (6th Cir.

2001) (citing Polk v. Yellow Freight Sys., Inc., 876 F.2d 527, 532 (6th Cir. 1989)).


          Because violating 18 U.S.C. § 401(3) is a misdemeanor, the parties agreed that the court

could impose a zero to six month sentence. Given that Prince’s counsel acknowledged that a

sentence of as long as six months would fall within the appropriate sentencing range, we are not

firmly convinced that Prince’s one-month sentence is substantively unreasonable.


          Prince argues his sentence is harsher than sentences imposed on other similarly situated

defendants and runs afoul of § 3553(a)(6). But § 3553(a)(6) aims to “avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of similar conduct.”

§ 3553(a)(6) (emphasis added). Prince’s substantial criminal history—including possession of

weapons and contraband— distinguishes his case from those he cites. Of the five cases Prince uses

                                                  -5-
No. 12-3789
United States v. Prince


to demonstrate a disparity, only one considers a defendant with prior criminal history. See United

States v. Meacham, 65 F. App’x 529 (6th Cir. 2003). The district court thus sentenced well within

its discretion for the offense of photographing a proceeding the court found “sensitive.”


       Prince’s conduct also distinguishes him from the defendants in the cases he cites. Two of

the cases involve taking prohibited photos outside of the courtroom. See Mazzetti v. United States,

518 F.2d 781 (10th Cir. 1975) (photographing from the parking lot outside of the courthouse);

United States v. Seymour, 373 F.2d 629 (5th Cir. 1967) (photographing in the hall outside of the

courtroom). And one case from Prince’s brief concerned civil contempt for failure to appear, rather

than criminal contempt. See In re Jacques, 761 F.2d 302 (6th Cir. 1985). Prince fails to persuade

us that his sentence, falling well within the range his counsel acknowledged was appropriate, falls

outside the bounds of reasonableness, and we AFFIRM.




                                               -6-
