United States v. Delroy Anthony McLean

Case: 17-10741 Date Filed: 06/08/2018 Page: 1 of 7 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 17-10741 ________________________ D.C. Docket No. 4:16-cr-00019-CDL-MSH-1 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus DELROY ANTHONY MCLEAN, Defendant - Appellant. ________________________ Appeal from the United States District Court for the Middle District of Georgia ________________________ (June 8, 2018) Before WILSON, JORDAN and HIGGINBOTHAM, * Circuit Judges. JORDAN, Circuit Judge. * The Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth Circuit, sitting by designation. Case: 17-10741 Date Filed: 06/08/2018 Page: 2 of 7 A jury convicted Delroy McLean of violating 18 U.S.C. § 115(a)(1)(B) by “threaten[ing] to assault” an immigration judge “with the intent to impede, intimidate, or interfere” with that judge “while [she was] engaged in the performance of official duties” (i.e., during a bond hearing). On appeal, Mr. McLean challenges his conviction and 41-month sentence on several grounds. One of Mr. McLean’s arguments presents an issue of first impression for us (and, as far as we can tell, for the country): whether an immigration judge is a “United States judge” within the meaning of § 115(a)(1)(B). When he moved for a judgment of acquittal at trial under Rule 29, Mr. McLean argued that immigration judges are not “United States judges” because they are not appointed under Article III of the Constitution. See D.E. 54 at 5 (“We’d also argue that she’s not a judge under Article [III.]”). In his pro se motion for a new trial, and in the supplement to that motion filed by his attorney, Mr. McLean asserted that immigration judges are not “United States judges” because they are employees of the Department of Justice who are appointed by and subject to the supervision of the Attorney General. See D.E. 51 at 2; D.E. 61 at 3-4. He makes that same argument now on appeal. See Br. for Appellant at 22-24.1 1 Mr. McLean did not ask the district court to define “United States judge” in its jury instructions, see D.E. 54 at 7, 8, 45, but the government does not argue that this failure resulted in any procedural bar. We therefore address Mr. McLean’s statutory argument on the merits. 2 Case: 17-10741 Date Filed: 06/08/2018 Page: 3 of 7 Questions of statutory interpretation are “subject to plenary review.” United States v. Gilbert, 130 F.3d 1458, 1461 (11th Cir. 1997). If § 115 did not define “United States judge,” ascertaining the meaning of the term would not be easy. That is because the term is not inherently limited to a single definition. See generally Black’s Law Dictionary 968-69, 1768-69 (10th ed. 2014) (not containing an entry for “United States judge”); 2 Shorter Oxford English Dictionary 3448 (5th ed. 2002) (same). It could encompass only Article III federal judges with life tenure, or Article III federal judges and Article I federal judges (such as magistrate judges and bankruptcy judges) who are selected and appointed by Article III judges, or those two categories ...

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