                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 15-4458


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

SAVINO BRAXTON,

                  Defendant - Appellant.



                              No. 15-4686


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

          v.

SAVINO BRAXTON,

                  Defendant - Appellant.



Appeals from the United States District Court for the District
of Maryland, at Baltimore.     James K. Bredar, District Judge.
(1:15-cr-00408-JKB-1; 1:09-cr-00478-JKB-1)


Submitted:   September 16, 2016            Decided:   September 30, 2016


Before NIEMEYER, SHEDD, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.


Steven H. Levin, LEVIN & CURLETT, LLC, Baltimore, Maryland, for
Appellant. Rod J. Rosenstein, United States Attorney, John F.
Purcell, Jr., Assistant United States Attorney, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Following remand of this case to the district court, * a jury

convicted Savino Braxton of possession with intent to distribute

heroin,         21    U.S.C.    § 841(a)(1)        (2012).     During    trial,   the

district court also summarily convicted Braxton of contempt, 18

U.S.C. § 401(3) (2012).                Braxton was sentenced to 240 months for

the drug offense and six months, consecutive, for contempt.                        He

appeals,         raising       three     issues.        The    appeals   have     been

consolidated.          We affirm.

                                             I

       Prior to trial, Braxton moved to dismiss the indictment

because the Government had destroyed heroin seized from his car

and apartment.             The district court denied the motion on the

ground that there was no evidence that the Government had acted

in bad faith.             Braxton contends that the destruction of the

heroin violated his due process rights.                       We review de novo a

constitutional due process claim.                   United States v. Legree, 205

F.3d 724, 729 (4th Cir. 2000).

       “[U]nless a criminal defendant can show bad faith on the

part       of   the    police,    failure    to     preserve    potentially     useful

evidence does not constitute a denial of due process of law.”

Arizona v. Youngblood, 488 U.S. 51, 58 (1988).                    A finding of bad

       *   United States v. Braxton, 784 F.3d 240 (4th Cir. 2015).



                                             3
faith “requires that the officer . . . intentionally withheld

the evidence for the purpose of depriving the plaintiff of the

use    of    that    evidence      during    his    criminal    trial.”       Jean   v.

Collins, 221 F.3d 656, 663 (4th Cir. 2000).                         If evidence is

destroyed by officials who believe the case to have been over,

there is no bad faith.             United Sates v. Talib, 347 F. App’x 934,

938 (4th Cir. 2009) (No. 08-4288).

       Officer Collins testified at a pretrial hearing that the

evidence was destroyed at a central DEA laboratory on May 15,

2014    —    almost       one    year   after      Braxton’s     first    sentencing.

Collins further testified that evidence typically is destroyed

after sentencing.              According to Collins, no one from the U.S.

Attorney’s Office directed the destruction of the evidence, and

he was not aware that any prosecutor knew of its destruction

until after it was destroyed.                The supervisors who directed the

destruction         of   the    evidence    had    no   other   involvement    in    the

case.       Under these circumstances, we conclude that there was no

bad faith and no due process violation.

                                            II

       On November 19, 2012, the Government filed an Information

and Notice of Government’s Intention to Seek Enhanced Minimum

Mandatory Sentence, 21 U.S.C. § 851 (2012).                      The notice stated

that, because Braxton was convicted in 1991 of a felony drug

offense, the United States would seek the enhanced statutory

                                             4
minimum penalty of twenty years.                See 21 U.S.C. § 841(b)(1)(A)

(2012).     On remand, the Government filed a second § 851 notice,

again reciting that Braxton was convicted in 1991 of a felony

drug   offense   and   that,   if    he       were    convicted   of     the   instant

offense, it would seek the enhanced minimum mandatory sentence

of twenty years.

       Braxton contends that the filing of the second § 851 notice

was    vindictive     and   violated      his        due   process     rights.      We

disagree.     While a prosecutor acts unconstitutionally when he

“responds to a defendant’s successful exercise of his right to

appeal by bringing a more serious charge against him,” United

States v. Wilson, 262 F.3d 305, 314 (4th Cir. 2001), this simply

is not what happened here.             Following his successful appeal,

Braxton was exposed to the same enhanced penalty for the same

offense with which he was originally charged.

                                       III

       The district court found Braxton to be in contempt because

he knowingly resisted and disobeyed the court’s admonitions not

to mention the matter of punishment before the jury.                           Braxton

challenges the contempt conviction on two grounds.                         First, he

argues that the conviction cannot stand because the court did

not    specifically    find    his   conduct          to   have   been    “willful.”

Braxton also claims that his behavior did not warrant a contempt

conviction.      Because Braxton did not raise these issues before

                                          5
the district court, our review is for plain error.                              See United

States v. Olano, 507 U.S. 725, 731-32 (1993).

      We reject both arguments.                 The relevant statute states that

a    court   may,       in     its    discretion,         punish     contempt     such    as

“[d]isobedience         or     resistance       to    its      lawful    writ,    process,

order, rule, decree, or command.”                    18 U.S.C. § 401(3).          Case law

identifies the elements of contempt under § 401(3) as “(1) a

reasonably specific order; (2) violation of the order; and (3)

the willful intent to violate the order.”                             United States v.

Allen, 587 F.3d 246, 255 (5th Cir. 2009) (per curiam).                            “One may

be   found   in     contempt         under    § 401(3)      only   if    [he]    willfully

violated a decree that was clear and left no uncertainty in the

minds of those that heard it.”                  United States v. Westbrooks, 780

F.3d.   593,      595        (4th    Cir.     2015)      (internal      quotation     marks

omitted).

      The    district         court     found      that     Braxton      “disobeyed      and

resisted     knowingly”         its     order      not    to    raise    the     issue    of

punishment before the jury.                  This, we conclude, is sufficient on

plain error review to satisfy the requirement that the defendant

acted willfully.

      Further, the court clearly warned Braxton at least twice

not to mention punishment.                    Braxton persistently ignored the

warnings, which he assured the court he understood.                            Under these



                                               6
circumstances, the contempt conviction does not constitute plain

error.

                                    IV

     We therefore affirm.      The motions to file a pro se brief

and an addendum to the pro se brief are denied.                We dispense

with oral argument because the facts and legal arguments are

adequately   presented   in   the   materials   before   the    court   and

argument would not aid the decisional process.

                                                                  AFFIRMED




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