                                                                        FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                    UNITED STATES COURT OF APPEALS                  April 7, 2009

                                  TENTH CIRCUIT                 Elisabeth A. Shumaker
                                                                    Clerk of Court


 UNITED STATES OF AMERICA,

               Plaintiff–Appellee
                                                           No. 08-1497
 v.                                              (D.C. No. 1:08-CR-00064-JLK-1)
                                                            (D. Colo.)
 PAGE PENK,

               Defendant–Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      Following a bench trial before a United States Magistrate Judge, Page Penk

was convicted of one petty offense. On appeal, he raises a single issue: whether

the bench trial violated his Sixth Amendment right to trial by jury. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we affirm Penk’s conviction because

there is no right to a jury trial for petty offenses.




      *
        The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 32.1.
      Penk was charged by information with (1) failing to comply with official

signs and the lawful direction of Federal police officers in violation of 41 C.F.R.

§ 102-74.385 and (2) creating a disturbance in violation of § 102-74.390. With

his case pending before a magistrate judge as permitted under 18 U.S.C.

§ 3401(a) and D. Colo. Crim. R. 57.1(B)(15), Penk moved for a jury trial, but his

motion was denied. Following a bench trial, Penk was convicted of failing to

comply but acquitted of creating a disturbance. The magistrate judge imposed a

five-day suspended sentence and two months’ unsupervised probation. Penk

appealed the conviction to a district judge, but his appeal was denied. This

appeal followed.

      Before this court, Penk argues that the Sixth Amendment requires a jury

trial even for petty offenses. We review this claim de novo. United States v.

Robertson, 45 F.3d 1423, 1430 (10th Cir. 1995). “It is well established that the

Sixth Amendment, like the common law, reserves th[e] jury trial right for

prosecutions of serious offenses, and that ‘there is a category of petty crimes or

offenses which is not subject to the Sixth Amendment jury trial provision.’”

Lewis v. United States, 518 U.S. 322, 325 (1996) (quoting Duncan v. Louisiana,

391 U.S. 145, 159 (1968)). “Crimes carrying possible penalties up to six months

do not require a jury trial if they otherwise qualify as petty offenses.” Duncan,

391 U.S. at 159. Penk was convicted of an offense carrying a maximum prison

term of 30 days, 41 C.F.R. § 102-74.450, which is a Class C misdemeanor, 18

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U.S.C. § 3559(a)(8). A Class C misdemeanor qualifies as a petty offense. 18

U.S.C. § 19. Thus, he was not entitled to a jury trial.

      AFFIRMED.



                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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