United States of America v. Deiago Davis

United States Court of Appeals
For the Eighth Circuit
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No. 23-1486
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United States of America
Plaintiff - Appellee
v.
Deiago Davis
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa
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Submitted: November 13, 2023
Filed: January 22, 2024
[Unpublished]
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Before KELLY, ERICKSON, and GRASZ, Circuit Judges.
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PER CURIAM.
Deiago Davis appeals the district court’s1 order sentencing him to three years
of imprisonment for violating the terms of his supervised release. Davis argues his
sentence may not exceed two years because the probation office previously
1 The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

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classified his underlying conviction as a class D felony. He claims the district court
is bound by that earlier classification. We affirm the sentence.
In 2014, despite a judge’s orders, Davis refused to testify in front of a federal
grand jury. As a result, a grand jury indicted Davis for criminal contempt of court
under 18 U.S.C. § 401(3). He pled guilty to the charge. He was sentenced to 46
months of imprisonment and a five-year term of supervised release. While on
supervised release, Davis committed several violations, which caused the probation
office to file a petition to revoke his release. In its violation worksheet, the probation
office listed Davis’s underlying conviction as a class D felony. After a hearing, the
district court revoked Davis’s release and ordered him to serve 13 months of
imprisonment and three years of supervised release to follow.
Davis fared no better on his second term of supervised release, committing
several violations. The probation office again petitioned to revoke his supervised
release, but this time it classified the underlying offense as a class A felony. Davis
objected, arguing the district court was bound by the previous classification of the
offense as a class D felony, even if that classification may have been erroneous. The
correct classification matters because if Davis’s underlying offense was a class D
felony, then he is not required to serve more than 2 years in prison for the supervised
release violation. See 18 U.S.C. § 3583(e)(3). The district court overruled the
objection, treating Davis’s underlying offense as a class A felony, which meant the
maximum prison sentence was five years, see id.2 The district court sentenced Davis
to three years of imprisonment with no supervised release to follow.
2 18 U.S.C. § 3583(e)(3) states:
“The court may . . . revoke a term of supervised release . . . except that
a defendant whose term is revoked under this paragraph may not be
required to serve on any such revocation more than 5 years in prison if
the offense that resulted in the term of supervised release is a class A
felony, . . . [or] more than 2 years in prison if such offense is a class C
or D felony . . . .”

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We review de novo the legality of Davis’s revocation sentence. United States
v. Childs, 17 F.4th 790, 791 (8th Cir. 2021). Based on careful review of the record,
we conclude Davis has failed to show the district court erred.
Davis cites no authority as to why the district court must treat his underlying
felony as a class D felony simply because the probation office labeled it as such in a
prior proceeding. The proper classification of the underlying offense had never been
litigated or formally ruled upon, so no prior determination was binding on the district
court at Davis’s second revocation sentencing. The district court was free to correct
what it perceived to be error. Because Davis does not articulate any other reason
why the imposed sentence may be unlawful, we are not presented with any basis to
disturb the sentence.3
Accordingly, we affirm the district court.
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3 The government argues criminal contempt of court is correctly classified as
a class A felony because 18 U.S.C. § 3559(a)(1) makes any offense a class A felony
if the offense is punishable by up to life imprisonment. Assuming a violation of
§ 401 is punishable by life imprisonment, we note a split among the circuits
regarding whether § 401 is subject to § 3559’s classification scheme. For instance,
the Eleventh Circuit held—not without authority—that “criminal contempt is best
categorized as a sui generis offense, rather than a felony or misdemeanor.” United
States v. Cohn, 586 F.3d 844, 848 (11th Cir. 2009). Meanwhile, the First Circuit
rejected Cohn’s reasoning and held § 401 is a class A felony. See United States v.
Wright, 812 F.3d 27, 34–35 (1st Cir. 2016). We need not decide whether § 401 is a
class A felony to resolve this case because Davis did not raise or brief this issue on
appeal.

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