Unpublished Disposition, 886 F.2d 334 (9th Cir. 1988)

MEMORANDUM^*

John A. Burgess appeals the denial of his Rule 35 motion to reduce his five-year sentence on a contempt conviction. We affirm.

BACKGROUND AND PROCEEDINGS BELOW

John A. Burgess, an attorney, was indicted by a grand jury of one count of contempt, two counts of interstate transportation of stolen property, and ten counts of wire fraud. He pled guilty to one count of each of the crimes charged. The district court sentenced Burgess to concurrent five-year prison terms for contempt and interstate transportation of stolen property, and a consecutive period of probation for wire fraud. The remaining ten counts of the indictment were dismissed pursuant to the plea agreement.

On June 27, 1988, Burgess filed a motion under Rule 35 requesting the court to reduce his sentence. The motion was denied, and Burgess now appeals.

DISCUSSION

The legality of a sentence under Rule 35 is subject to de novo review. United States v. Heredia-Fernandez, 756 F.2d 1412, 1417 (9th Cir.), cert. denied, 474 U.S. 836 (1985). Otherwise, the sentence imposed is left to the sound discretion of the district court. United States v. Messer, 785 F.2d 832, 834 (9th Cir. 1986).

Burgess argues that, as a lawyer, he could not be prosecuted under 18 U.S.C. § 401(2), so the maximum sentence of 18 U.S.C. § 402, which is a $1,000 fine, six months imprisonment, or both, must apply. This claim is based on a faulty interpretation of Cammer v. United States, 350 U.S. 399 (1956). Cammer held that an attorney is not the kind of officer who could be summarily tried for contempt under 18 U.S.C. § 401(2). It did not hold that attorneys could not be prosecuted under Sec. 401(1) or (3), and in any event, Burgess was not summarily tried.

Burgess was indicted for and pled guilty to, contempt in violation of 18 U.S.C. § 401. Section 401 does not contain a maximum sentence, and Burgess was advised of this fact before his guilty plea was accepted. His sentence was not in excess of that allowed by law.

Burgess argues that his conviction for contempt should be reversed because he did not receive a jury trial on that charge. This argument is frivolous. Burgess waived his right to a jury trial on all counts of the indictment in a written waiver signed February 9, 1988. He subsequently pled guilty to the contempt charge, which also waives his right to a jury trial.

Burgess claims the district court failed to consider mitigating facts, including his medical condition and needs and the effect of a sentence of incarceration on his family, in imposing his sentence.¹  The transcript of the sentencing hearing indicates, however, that the district court was aware of these facts, and, indeed, took them into consideration. Numerous reports of medical examinations, declarations, and letters are in the record and were considered by the sentencing judge both prior to sentencing, and for the motion to reduce sentence under Rule 35. The district court did not abuse its discretion in denying Burgess's motion to reduce his sentence.

AFFIRMED.