U.S. Court of Appeals for the Eleventh Circuit, 2022

United States v. Stephen Mayer

U.S. Court of Appeals for the Eleventh Circuit · Decided January 24, 2022

Opinion

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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 20-10231 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus STEPHEN MAYER,

Defendant-Appellant.

____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:14-cr-00190-SCB-AEP-1 ____________________ USCA11 Case: 20-10231 Date Filed: 01/24/2022 Page: 2 of 5

2 Opinion of the Court 20-10231

Before ROSENBAUM, GRANT, and BLACK, Circuit Judges.

PER CURIAM: Stephen Mayer, pro se, appeals the denial of his motion and supplemental motions for civil contempt, filed pursuant to 18 U.S.C. § 401(3). His core contention on appeal is the Govern- ment violated his criminal judgment by rehousing him in privately run facilities that he alleges failed to adhere to the Bureau of Pris- ons’ (BOP) policies and customs because, he argues, these failures amount to a resentencing in violation of his constitutional rights.

He also contends the Government is in contempt for sharing his Presentence Investigation Report (PSI) with these private facili- ties. 1 After review, 2 we affirm the district court.

1 Though Mayer is now housed in a facility run by the BOP, his appeal is not moot because he has been removed from this same facility previously and re- housed in multiple private facilities specifically for criminal aliens. See Fed. Election Comm’n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 462 (2007) (explaining an exception to mootness “applies where (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again” (quotation marks omitted)).

2 We review the denial of a motion for civil contempt for an abuse of discre- tion. McGregor v. Chierico, 206 F.3d 1378, 1383 (11th Cir. 2000). “A district court abuses its discretion if it applies an incorrect legal standard, follows im- proper procedures in making the determination, or makes findings of fact that are clearly erroneous.” United States v. Khan, 794 F.3d 1288, 1293 (11th Cir. 2015) (quotation marks omitted).

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20-10231 Opinion of the Court 3 Section 401(3) of Title 18 of the U.S. Code provides “[a] court of the United States shall have power to punish by fine or imprisonment . . . [d]isobedience or resistance to its lawful writ, process, order, rule, decree, or command.” 18 U.S.C. § 401(3). As a criminal offense, contempt of court has the following three ele- ments: “(1) a lawful and reasonably specific order that (2) the de- fendant has violated (3) willfully.” Romero v. Drummond Co., 480 F.3d 1234, 1242 (11th Cir. 2007). “Criminal contempt is a crime in the ordinary sense” that requires, among other things, proof be- yond a reasonable doubt, and “is punitive, to vindicate the author- ity of the court.” Int’l Union, United Mine Workers of Am. v. Bag- well, 512 U.S. 821, 826-28 (1994) (quotation marks omitted).

However, “[c]ivil contempt . . . is remedial and aims to force compliance with an order of the court.” United States v. Straub, 508 F.3d 1003, 1009 (11th Cir. 2007). In order to establish a party acted in civil contempt, the party seeking the contempt ruling must show by clear and convincing evidence: (1) the allegedly violated order was valid and lawful, (2) the order was clear and unambigu- ous, and (3) the alleged violator could comply with the order. Ga. Power Co. v. Nat’l Labor Relations Bd., 484 F.3d 1288, 1291 (11th Cir. 2007). The order in question is subject to “reasonable inter- pretation,” but the order may not be expanded beyond the mean- ing of its terms without notice and an opportunity to be heard. Id. (quotation marks omitted). Any ambiguities or uncertainties in the court order are construed in a light favorable to the party charged with contempt. Id. However, the inquiry is whether the party in USCA11 Case: 20-10231 Date Filed: 01/24/2022 Page: 4 of 5

4 Opinion of the Court 20-10231 fact complied with the order in question, not whether the party subjectively believed that it was in compliance with, or intended to comply with, the order. Id. The district court did not abuse its discretion in denying Mayer’s motions.3 Section 3621 of Title 18 of the U.S. Code pro- vides that a person sentenced to a term of imprisonment “shall be committed to the custody of the [BOP].” 18 U.S.C. § 3621(a). The BOP has custody of a prisoner during his term of imprisonment, and it also has the discretion to designate any “correctional facility that meets minimum standards of health and habitability estab- lished by the [BOP], whether maintained by the Federal Govern- ment or otherwise.” Id. § 3621(a)-(b). Mayer’s criminal judgment stated, in relevant part, only that he be committed to BOP custody, and housing him at private facilities did not remove him from BOP custody. Notably, Mayer’s criminal judgment did not specify he must be housed within 500 miles of his release address, in a BOP- run facility that houses citizens and criminal aliens alike, or other- wise specify the conditions of his confinement. Mayer’s allegations of constitutional violations at his private facilities do not establish the Government violated any portion of his criminal judgment. 3 While Mayer labels his motions as invoking 18 U.S.C. § 401(3), a criminal offense statute, Mayer’s requested relief is remedial in nature, and he expressly seeks to initiate civil contempt proceedings. Regardless, we conclude Mayer’s motions fail under either the civil or criminal standards for contempt.

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20-10231 Opinion of the Court 5 Also, for this reason, his claims regarding his PSI are merit- less, as he does not identify a court order prohibiting its disclosure with a BOP-contracted facility. Further, to the extent Mayer’s re- quest for contempt is premised on the conditions of his confine- ment, he has failed to adequately address the court’s alternative ground his constitutional challenges needed to be brought in a sep- arate civil rights action. Accordingly, for these reasons, we affirm.4 AFFIRMED

4Mayer abandoned any challenge to the district court’s denial of his reconsid- eration motion by failing to brief this issue. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (stating when a defendant offers no argu- ment on an issue on appeal, we consider the argument abandoned).

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