United States v. Campos ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-15-2007
USA v. Campos
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2063
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"USA v. Campos" (2007). 2007 Decisions. Paper 1615.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-2063
____________
UNITED STATES OF AMERICA
v.
JOSEPH CAMPOS,
Appellant
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 05-cr-00617)
District Judge: Honorable Freda L. Wolfson
____________
Submitted Under Third Circuit LAR 34.1(a)
February 12, 2007
Before: SMITH and FISHER, Circuit Judges, and DIAMOND,* District Judge.
(Filed: February 15, 2007)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge
*
The Honorable Gustave Diamond, United States District Judge for the Western
District of Pennsylvania, sitting by designation.
Joseph Campos was convicted and sentenced to 74 months imprisonment for
illegal possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
The District Court determined by a preponderance of the evidence that he had possessed
the firearm during an attempted robbery and applied a four-level enhancement under
United States Sentencing Guidelines § 2K2.1(b)(5).1 Campos now challenges the District
Court’s decision to resolve disputed facts regarding this enhancement using the
preponderance of the evidence standard, rather than requiring proof beyond a reasonable
doubt. He also argues that the sentencing enhancement was erroneously applied.
Because the standard used by the District Court was proper and its factual determination
is not clearly erroneous, we will affirm the sentence imposed by the District Court.
I.
As we write only for the parties, we will forgo a lengthy recitation of the factual
and legal background to this case. On May 12, 2005, Officer Darrell Hall and other
members of the Atlantic City Police Department were conducting surveillance of the
Berkley Gardens Apartments, where drug dealing and robberies were common. Officer
Hall watched as Campos and Lamont Mitchell entered the apartment complex and
covered their faces with white t-shirts. Campos then removed a handgun from his
1
Section 2K2.1(b)(5) was renumbered in November 2006, and is now
§ 2K2.1(b)(6). See U.S. Sentencing Guidelines Manual § 2K2.1. Because this case is
based on the Guidelines as they existed before November 2006, we use the numbering
that existed prior to the change.
2
waistband and held it down alongside his leg. Mitchell also took out a handgun that he
held with both hands in a low position. Officer Hall then saw Campos enter a stairwell
while Mitchell stood watch. Campos left the stairwell shortly, and both men got into a
blue minivan parked near the building and drove away.
As this was taking place, Officer Hall radioed for backup. The van was stopped by
police soon after it left the apartment complex, and a firearm was found on Campos’s
person.
Campos was brought to police headquarters, where he was interviewed by Officer
Hall. He admitted to having the gun in his possession, and provided a written statement
to that effect. Officer Hall testified that, upon further questioning, Campos told him that
“he had received a phone call that there was a joker in there [the Berkley Gardens
Apartments] with 5K [$5,000] on him, and he was going there to take it.” Campos
refused to put this statement in writing, but it was included in Officer Hall’s incident
report. The report was reviewed and approved by Sergeant Love, who was also present
during the interview.
On August 17, 2005, Campos was charged under a federal criminal indictment
with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).
He pleaded guilty on November 3, 2005. The United States Probation Office submitted a
Presentence Investigation Report recommending a Guidelines range of 77 to 96 months.
Its calculation included a four-level enhancement because Campos had possessed the
firearm in connection with another felony offense; in this case, attempted armed robbery.
3
At sentencing, Campos objected to the four-level enhancement. The District Court
heard the testimony of Officer Hall about his surveillance of the apartment complex and
his interview of Campos. The District Court found this testimony credible, and
concluded by a preponderance of the evidence that Campos had possessed a firearm in
conjunction with the commission of an attempted robbery. After considering the factors
listed in 18 U.S.C. § 3553(a), it sentenced him to 74 months imprisonment. This appeal
followed.
II.
We exercise jurisdiction pursuant to 28 U.S.C. § 1291. Campos first argues that
the District Court violated his due process rights when it concluded that the disputed facts
at sentencing, which amounted to the finding of a separate criminal offense, did not need
to be found beyond a reasonable doubt. Questions of law like this one are subject to de
novo review. See, e.g., United States v. Pojilenko, 416 F.3d 243, 246 (3d Cir. 2005). We
recently settled this question in United States v. Grier, -- F.3d --, 2007 WL 315102 (3d
Cir. Feb. 5, 2007), where the “primary issue” was “whether the Due Process Clause
requires facts relevant to enhancements under the United States Sentencing Guidelines,
particularly those that constitute a ‘separate offense’ under governing law, to be proved
beyond a reasonable doubt.” Id. at *3. We concluded that it did not:
[f]acts relevant to application of the Guidelines – whether or not they
constitute a “separate offense” – do not [increase the statutory maximum
punishment to which the defendant is exposed]. They inform the district
court’s discretion without limiting its authority. They therefore do not
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constitute “elements” of a “crime” under the rationale of Apprendi and do
not implicate the rights to a jury trial and proof beyond a reasonable doubt.
Id. at *8 (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)) (internal citations
omitted). Thus, the District Court’s use of the preponderance of the evidence standard to
determine whether or not the four-level enhancement was applicable did not violate
Campos’s due process rights.
Next, Campos argues that, even under a preponderance of the evidence standard,
there was insufficient evidence to support the District Court’s finding that he was
engaged in an attempted robbery while he possessed the firearm. We review the District
Court’s factual findings for clear error. United States v. Loney, 219 F.3d 281, 288 (3d
Cir. 2000).
Under § 2K2.1(b)(5) of the United States Sentencing Guidelines, a defendant’s
offense level may be increased by four levels “[i]f the defendant used or possessed any
firearm or ammunition in connection with another felony offense.” Application Note 7 to
§ 2K2.1 defines a “felony offense” as “any offense (federal, state, local) punishable by
imprisonment for a term exceeding one year, whether or not a criminal charge was
brought, or conviction obtained.”
Here, the District Court heard Officer Hall’s testimony and determined by a
preponderance of the evidence that Campos was engaged in attempted robbery when he
was found in possession of the firearm. This finding is not clearly erroneous. Officer
Hall testified that Campos told him during his post-arrest interview that “he had received
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a phone call that there was a joker in there [the Berkley Gardens Apartments] with 5K
[$5,000] on him, and he was going there to take it.”2 Officer Hall’s observations of
Campos were consistent with this admission. Campos placed a white t-shirt over his face
to disguise his identity, and quickly entered and exited the apartment complex with a gun
drawn as Mitchell served as a lookout. The two men then fled in a van. Although
Campos’s statement about the attempted robbery was not included in his written
admission, Officer Hall’s credibility was buttressed by the fact that his testimony was
consistent with dispatch records from that evening. Thus, we are unable to conclude that
the District Court’s finding that Campos was engaged in attempted robbery while in
possession of the firearm is clearly erroneous.
III.
For the foregoing reasons, we will affirm the sentence imposed by the District
Court.
2
Campos argues that this statement was hearsay and thus not properly considered
by the District Court. However, it is not correct to characterize the pretrial statement of a
defendant offered by the Government at a sentencing hearing as hearsay. See Fed. R.
Evid. 801(d)(2). Even if it were, the Federal Rules of Evidence do not apply in
sentencing proceedings. See Fed. R. Evid. 1101(d)(3).
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