United States v. Robert Campbell , 436 F. App'x 518 ( 2011 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 11a0631n.06
FILED
No. 10-5150 Aug 26, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
v. ) EASTERN DISTRICT OF TENNESSEE
)
ROBERT DESHAWN CAMPBELL, ) OPINION
)
Defendant-Appellant. )
)
Before: BOGGS, GILMAN, and COOK, Circuit Judges.
RONALD LEE GILMAN, Circuit Judge. In March 2009, a jury convicted Robert
Deshawn Campbell of possessing crack cocaine, distributing crack cocaine, possessing a firearm in
furtherance of a drug-trafficking offense, and being a felon in possession of a firearm. The physical
evidence that led to these convictions was seized from Campbell after he was arrested outside of an
illegal gambling hall in Knoxville, Tennessee.
Before trial, Campbell moved to suppress all of the evidence seized from his person on the
night that he was arrested, as well as any statements that he made to law-enforcement officers that
same night at the police station. The magistrate judge denied Campbell’s motion to suppress.
At sentencing, the district court designated Campbell as an armed career criminal under 18
U.S.C. § 924(e) and as a career offender under the U.S. Sentencing Guidelines. The court then
sentenced him to 360 months of imprisonment and to five years of supervised release.
No. 10-5150
United States v. Campbell
Campbell now appeals his convictions and sentence. He argues that the evidence confiscated
from his person and the statements that he made on the night that he was arrested should have been
suppressed. Campbell also challenges the sufficiency of the evidence underlying several of his
convictions. His final set of claims revolve around the procedural and substantive reasonableness
of his sentence. For the reasons set forth below, we AFFIRM the judgement of the district court.
I. BACKGROUND
In February 2005, after a several-month-long investigation into suspected illegal gambling
activity taking place at Max’s Lounge in Knoxville, local and federal law-enforcement agents
executed a search warrant at that establishment. The warrant, which was issued by a state-court
judge, permitted a search of Max’s for evidence of illegal gambling.
Before executing the warrant, Todd Gilreath, the lead investigator, briefed all of the officers
who were participating in the raid. The briefing explained the high-crime nature of the area and the
threat posed to the officers’ safety because of the high likelihood that the people inside of Max’s
would be armed. Investigator Gilreath then divided the operation into two parts: (1) the perimeter
operation, which included the officers who would be dealing with any persons outside of Max’s, and
(2) the inside operation, which included those who would actually execute the search warrant.
After the briefing, all of the officers traveled to Max’s in a caravan of marked and unmarked
police cars. Investigator Gilreath expected to encounter a large number of people at Max’s, so a total
of 17 law-enforcement officers participated in the raid. When the caravan pulled into the parking
lot, Investigator Gilreath noticed an individual, wearing a large puffy jacket, standing in the doorway
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to Max’s and another individual working on a car in the parking lot. He then saw the individual
standing in the doorway, who was later identified as Campbell, look in Investigator Gilreath’s
direction and “rapidly c[o]me off the front porch.” Investigator Gilreath immediately radioed to the
other officers, “hey, you got one running.” According to Investigator Gilreath, Campbell “came off
[the porch] at a pace that concerned [him] to the point” that he decided to inform the other officers.
While Investigator Gilreath proceeded into Max’s, some of the other officers, including
Officer Claiborne, approached Campbell and ordered him to get on the ground. Officer Claiborne
testified that he ordered Campbell to the ground because he feared for the officers’ safety and
because he believed that Campbell had been trying to avoid them. As Campbell was going down
to the ground, he informed the officers that he had a gun on his belt. After hearing this information,
the officers “put him on the ground, handcuffed him, . . . retrieved the gun,” and searched his person,
on which they found .8 grams of crack cocaine. Campbell was then placed under arrest and taken
to the police station.
Upon arriving at the police station, Campbell was read his Miranda rights. Campbell
acknowledged that he understood his rights and he signed a written waiver. He then told Officer
Claiborne that he had previously obtained the gun from a drug user in exchange for two rocks of
crack cocaine. Campbell was subsequently charged in a second superseding indictment as follows:
Count 1, distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1); Count 2, possessing a
firearm in furtherance of a drug-trafficking offense, in violation of 18 U.S.C. § 924(c); Count 3,
being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e); Count
4, possessing cocaine base with the intent to distribute the drug, in violation of 21 U.S.C.
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§ 841(a)(1); and Count 5, carrying a firearm during a drug-trafficking crime, in violation of 18
U.S.C. § 924(c)(1).
Before trial, Campbell moved to suppress all of the evidence obtained from him after he was
ordered to the ground and searched in front of Max’s. He argued that Investigator Gilreath and
Officer Claiborne had neither probable cause nor reasonable suspicion to believe that Campbell had
committed, or was about to commit, a crime, or that he was armed or dangerous prior to their
stopping and frisking him. The magistrate judge heard testimony from Investigator Gilreath, Officer
Claiborne, and Stewart Branner, the other man seen outside of Max’s when the law-enforcement
officers arrived to execute the search warrant.
After hearing the testimony of these three indviduals, the magistrate judge concluded that
Campbell’s evasive behavior, coupled with his proximity to Max’s and his presence in a high-crime
area, gave Investigator Gilreath and Officer Claiborne reasonable suspicion to believe that Campbell
was serving as a lookout for the suspected criminal activity occurring inside Max’s. He therefore
concluded that Campbell’s seizure was constitutionally permissible. The district court later accepted
the magistrate judge’s Report and Recommendation in full and denied Campbell’s motion to
suppress, thus allowing the admission at trial of the firearm, ammunition, and drugs taken from
Campbell, as well as the statements that he made at the police station.
In another pretrial motion, Campbell sought permission to introduce expert testimony
regarding the interstate-commerce element of Count 3 (being a felon in possession of a firearm). His
economics expert would have testified that Campbell’s possession of the firearm at issue “had no
real or material impact on interstate commerce.” The government opposed the motion, and the
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magistrate judge, to whom the motion had been referred for disposition under 28 U.S.C. § 636(b),
agreed with the government that the proposed testimony offered by Campbell’s economics expert
was irrelevant. He therefore excluded the expert’s testimony.
The jury convicted Campbell on Counts 1 through 3 (distributing crack cocaine, possessing
a firearm in furtherance of a drug-trafficking offense, and being a felon in possession of a firearm,
respectively). On Count 4 (possessing crack with intent to distribute), the jury convicted Campbell
of the lesser-included offense of simple possession of cocaine base. He was acquitted on Count 5
(carrying a firearm during and in relation to a drug-trafficking crime).
Campbell made several objections to the Presentence Report (PSR) at sentencing. First, he
objected to the application of U.S. Sentencing Guidelines (U.S.S.G.) § 4B1.1, the career-offender
provision. Before his conviction in this case, Campbell had been convicted of several other crimes,
including two convictions for aggravated robbery, one conviction for aggravated assault, and one
conviction for facilitation of second-degree murder. Campbell argued that his robbery and assault
offenses should be considered together as one offense rather than as separate offenses because he
was sentenced for all three on the same day. He further contended that his prior conviction for
facilitation of second-degree murder should not be considered a predicate offense at all because mere
facilitation is not a crime of violence.
The district court rejected both of these arguments. It concluded that because “there were
intervening arrests prior to one or more of the predicate offenses[,] . . . there were enough separate
prior felony convictions to support Defendant’s classification as a career offender.” The court also
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concluded that facilitation of second-degree murder is a crime of violence, and could therefore be
considered in sentencing Campbell as a career offender under U.S.S.G. § 4B1.1.
Campbell further objected to the application of the enhanced-penalty provision of the Armed
Career Criminal Act (ACCA), codified in relevant part at 18 U.S.C. § 924(e), which requires a term
of imprisonment of at least 15 years. He argued that his prior aggravated-robbery convictions should
not be considered separate convictions for purposes of applying 18 U.S.C. § 924(e) because he was
arrested for both on the same date. The district court rejected this argument, concluding that they
should be considered separate predicate offenses because each aggravated robbery was committed
on a different date.
Campbell also challenged the application of 18 U.S.C. § 924(e) on the ground that facilitation
of second-degree murder is not a crime of violence. He asserted that if that conviction were
excluded, and if his aggravated-robbery convictions were counted as just one conviction, he would
have only two prior violent-crime convictions (one aggravated-assault conviction and one
aggravated-robbery conviction) rather than the three required for application of 18 U.S.C. § 924(e).
The district court rejected this argument. First, it had already concluded that the two aggravated-
robbery convictions were separate predicate offenses. Second, the court had previously concluded
that facilitation of second-degree murder qualified as a crime of violence. The court therefore held
that Campbell was subject to being sentenced as an armed career offender under 18 U.S.C. § 924(e)
because he was found guilty of violating 18 U.S.C. § 922(g) and has previous convictions for
aggravated robbery, aggravated assault, and facilitation of second-degree murder.
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Campbell next moved for a downward variance in his sentence based on his mental-health
condition and his terrible upbringing as a child. The district court denied his motion, concluding that
these factual arguments were insufficient to justify a downward variance. It also rejected Campbell’s
argument that he should receive a reduced sentence because he told the police that he was in
possession of a firearm and a controlled substance. The court concluded that these statements did
not constitute substantial assistance because they did not provide the government with information
that would help it curtail crime and criminal activity generally.
Campbell was then sentenced to 240 months’ imprisonment for Count 1, 300 months’
imprisonment for Count 3, and 12 months’ imprisonment for Count 4, all of which were to be served
concurrently. He was further sentenced to a term of 60 months of imprisonment on Count 2, which
was to be served consecutively to the terms imposed for the other three counts, for a total of 360
months of imprisonment and five years of supervised release. The court noted that “[t]his term is
at the bottom of the . . . Advisory Guideline Range,” which is 360 months to life imprisonment for
a defendant being sentenced as a career offender. It reasoned that this sentence reflected, among
other things, the seriousness of Campbell’s conduct and his lengthy criminal history.
Campbell now appeals his convictions and sentence. He raises six issues on appeal:
(1) whether the evidence seized from him at Max’s and the statements that he made at the police
station should have been suppressed, (2) whether the evidence was sufficient to support his
convictions, (3) whether his expert’s testimony regarding the interstate-commerce element of Count
3 (being a felon in possession of a firearm) should have been admitted, (4) whether the career-
offender and armed-career-criminal designations were applicable to him, (5) whether his motion for
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a downward variance was improperly denied, and (6) whether the five-year consecutive mandatory-
minimum sentence under 18 U.S.C. § 924(c) is applicable to him.
II. ANALYSIS
A. Suppression of evidence
“We review a district court’s factual findings on a motion to suppress under the clear-error
standard and review its legal conclusions de novo.” United States v. Taylor, 600 F.3d 678, 680 (6th
Cir. 2010). “When reviewing these factual findings, we consider the evidence in the light most likely
to support the district court’s decision.” Id. (internal quotation marks omitted). Campbell does not
challenge the facts as set forth by the magistrate judge in his Report and Recommendation, which
was later adopted by the district court. The issue is therefore the application of the law to those facts.
See United States v. Keith, 559 F.3d 499, 503 (6th Cir. 2009) (acknowledging that because the
defendant did not challenge the facts as found by the magistrate and district judges, the only issue
before the court was the application of the law to those facts).
The Fourth Amendment guarantees the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” A seizure occurs when,
“in view of all of the circumstances surrounding the incident, a reasonable person would have
believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980).
In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court created an exception to the general
Fourth Amendment requirement that a seizure must be based on probable cause. The Court held that
police officers are permitted to conduct a brief investigatory stop “where a police officer observes
unusual conduct which leads him reasonably to conclude . . . that criminal activity may be afoot and
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that the persons with whom he is dealing may be armed and presently dangerous.” Id. at 30. Such
a stop is justified based on the lower threshold of reasonable suspicion rather than on probable cause.
Id.
“Reasonable suspicion is, of course, a somewhat abstract concept.” Smoak v. Hall, 460 F.3d
768, 778 (6th Cir. 2006) (internal quotation marks omitted). “To justify a brief, investigatory stop
under Terry v. Ohio, an officer must point to specific, articulable facts that give rise to a reasonable
suspicion that the suspect was engaged in criminal activity.” United States v. Gross, 624 F.3d 309,
315 (6th Cir. 2010) (internal quotation marks omitted), amended by No. 08-4051 (6th Cir. June 15,
2011). The officer “must be able to articulate something more than an inchoate and unparticularized
suspicion or hunch.” United States v. Sokolow, 490 U.S. 1, 7 (1989) (internal quotation marks
omitted).
We examine the totality of the circumstances in determining whether reasonable suspicion
existed to justify a Terry stop. Smoak, 460 F.3d at 779. The reasonableness of a stop is determined
by two factors:
(1) whether there was a proper basis for the stop . . . ; and (2) whether the degree of
intrusion into the suspect’s personal security was reasonably related in scope to the
situation at hand, which is judged by examining the reasonableness of the officials’
conduct given their suspicions and the surrounding circumstances.
Id. (internal quotation marks omitted).
The Supreme Court in Terry also authorized officers conducting a proper stop to frisk a
suspect “where it appears from the facts known to the officer that there is a reasonable likelihood that
the restrained individual is armed and the officer’s safety is in jeopardy.” United States v. Roach,
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958 F.2d 679, 682 (6th Cir. 1992). In the present case, Campbell argues that he was
unconstitutionally seized when Officer Claiborne stopped him and instructed him to get on the
ground. He contends that the stop was an arrest effectuated without probable cause or, in the
alternative, that even if probable cause was not required for the stop, his Fourth Amendment rights
were violated when he was subjected to a Terry stop that was not supported by reasonable suspicion.
He therefore asserts that any evidence obtained from the seizure, as well as the statements that he
later made at the police station, should have been suppressed. Campbell does not challenge the
Terry frisk that Officer Claiborne conducted after Campbell informed the officers that he was
carrying a gun, so we need analyze only whether the officers had reasonable suspicion to stop
Campbell in the first place.
As a preliminary matter, we conclude that Officer Claiborne’s initial stop of Campbell and
his request that Campbell get on the ground was not an arrest. The entire interaction occurred in a
matter of seconds and, as he was going to the ground, Campbell told the officers that he had a gun
on his person. Before learning that Campbell was carrying a gun, the officers did not use any force.
And after learning of the gun, the officers were entitled to handcuff Campbell within the confines
of a Terry stop. See Houston v. Clark Cnty. Sheriff Deputy John Does 1-5, 174 F.3d 809, 815 (6th
Cir. 1999) (“[T]he use of handcuffs [does not] exceed the bounds of a Terry stop, so long as the
circumstances warrant that precaution.”). The limited nature of the initial stop, which lasted only
seconds, combined with the fact that the officers did not initially use any force, makes Officer
Claiborne’s stop more analogous to a Terry stop than to an arrest.
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We must next determine whether the Terry stop to which Campbell was subjected was
supported by reasonable suspicion. The government cites four factors in support of its argument that
Officer Claiborne had reasonable suspicion to stop Campbell: (1) Campbell was in a high-crime
area, (2) Campbell took evasive action as the police approached, (3) Campbell was on the premises
where a search warrant was being executed, and (4) Campbell appeared to be serving as a lookout
for the suspected criminal activity inside Max’s.
Factors that are innocent when considered in isolation may provide the basis for reasonable
suspicion when viewed together by an experienced officer. See United States v. Arvizu, 534 U.S.
266, 273, 277 (2002) (determining that reasonable suspicion based on the totality of the
circumstances surrounding a Terry stop “allows officers to draw on their own experience and
specialized training to make inferences from and deductions about the cumulative information
available to them that might well elude an untrained person” (internal quotation marks omitted)).
In Illinois v. Wardlow, 528 U.S. 119 (2000), for example, the Supreme Court held that the
defendant’s presence in a high-crime area and his unprovoked flight were relevant factors in
conducting a Terry analysis. Id. at 124. The Court concluded that the officers had reasonable
suspicion to stop Wardlow because his headlong flight was the “consummate act of evasion” and,
although not necessarily indicative of wrongdoing, “it is certainly suggestive of such.” Id. It further
commented that
unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very
nature, is not going about one’s business; in fact, it is just the opposite. Allowing
officers confronted with such flight to stop the fugitive and investigate further is
quite consistent with the individual’s right to go about his business or to stay put and
remain silent in the face of police questioning.
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Id. at 125 (internal quotation marks omitted). Thus, the unprovoked nature of the flight is a relevant
consideration in determining whether reasonable suspicion exists.
This court has recognized that “simply walking away from the police does not give rise to
reasonable suspicion,” but it has also held that the “the speed of the suspect’s movements may be
relevant in the totality of the circumstances.” United States v. Caruthers, 458 F.3d 459, 466 (6th Cir.
2006) (internal quotation marks omitted); see also Lee v. Hefner, 136 F. App’x 807, 812 (6th Cir.
2005) (“In short, the pace at which Jose retreated does not distinguish this case from Wardlow—the
key fact is undisputed that Jose, upon observing a strange vehicle, Officer Hefner’s patrol car,
retreated.”); United States v. Gordon, 231 F.3d 750, 757 (11th Cir. 2000) (noting that the Supreme
Court in Wardlow “plainly did not hold that evidence of the defendant’s unprovoked flight may not
be considered unless it is headlong,” and concluding that the defendant’s quick walk/run after
making eye contact with the police and his decision to drive away, coupled with the characteristics
of the area, adequately justified the Terry stop (internal quotation marks omitted)).
Campbell argues that Wardlow is inapplicable to this case because he was unable to engage
in “headlong” flight due to the fact that he has a bullet in one of his legs. But as the above-cited
cases demonstrate, the speed at which Campbell fled is not determinative. Of greater significance
here is that his decision to flee was unprovoked. Investigator Gilreath and Officer Claiborne
therefore properly considered Campbell’s quick exit from Max’s front porch in determining whether
to stop him.
The government further argues that the officers’ belief that Campbell was acting as a lookout
provides additional support for their reasonable suspicion. In reviewing whether law-enforcement
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officers have reasonable suspicion to conduct a Terry stop, due weight must be given to the
inferences they reasonably draw from the facts of the particular situation in front of them. United
States v. Perez, 440 F.3d 363, 371 (6th Cir. 2006) (“While reasonable suspicion must be based on
more than ‘ill-defined hunches,’ officers may ‘draw on their own experience and specialized training
to make inferences from and deductions about the cumulative information available to them that
might well elude an untrained person.’” (quoting Arvizu, 534 U.S. at 273)).
Investigator Gilreath testified that he had conducted approximately 50 undercover gambling
investigations and had executed about the same number of search warrants with respect to places
allegedly used for illegal gambling activities. He explained that the typical organized gambling
operation functions almost like an illegal lottery, where runners will go and collect numbers and
bring them back to the gambling house. Investigator Gilreath further stated that because these illegal
gambling houses are often holding a lot of money, they are susceptible to being robbed. The
organizers therefore often employ an individual to “stand at the front door to block the doorway,
[who] more likely than not will be armed.” Based on his experience, Investigator Gilreath concluded
that Campbell was acting as a lookout “to prevent someone from coming in and robbing them, and
. . . to give them a heads up that the police were on the way in.” He therefore ordered the other
officers to “check [Campbell] out.”
In sum, the factors to be aggregated in this case to determine whether the officers had
reasonable suspicion to stop Campbell include: (1) Campbell’s presence in a high-crime area, (2) his
unprovoked evasive behavior upon seeing the police cars enter Max’s parking lot, (3) his presence
on the premises where a search warrant was about to be executed, and (4) Investigator Gilreath’s and
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Officer Claiborne’s belief, based on their experience, that Campbell was serving as a lookout for the
suspected criminal activity taking place inside Max’s. Although these factors do not provide
conclusive evidence that Campbell was engaged in criminal activity, they do provide at least a
reasonable suspicion that criminal activity was afoot and that Campbell was likely complicit in that
activity.
Officer Claiborne was therefore permitted to confront Campbell for the purpose of
conducting a Terry stop. Any evidence obtained from that stop and the subsequent frisk, in addition
to the statements that Campbell made at the police station, were properly admitted. Because we
conclude that Officer Claiborne’s Terry stop of Campbell was constitutional, we need not address
the government’s alternative argument that the stop was justified under Michigan v. Summers, 452
U.S. 692 (1981), based on the authority of the search warrant.
B. Sufficiency of the evidence
In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court set forth the standard for
challenges based on sufficiency of the evidence, holding that “the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319 (emphasis in
original). “This is a very heavy burden” for the defendant to meet. United States v. Jones, 641 F.3d
706, 710 (6th Cir. 2011) (internal quotation marks omitted). The Jackson standard “gives full play
to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson, 443 U.S.
at 319.
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Campbell challenges the sufficiency of the evidence related to his convictions on Counts 1,
2, and 3. Each argument is evaluated in turn below.
1. Sufficiency of the evidence for conviction on Count 1 (distribution of a
controlled substance, in violation of 21 U.S.C. § 841(a)(1))
Campbell’s main challenge to the sufficiency of the evidence regarding his conviction for
the distribution of a controlled substance (Count 1) is that the only supporting evidence was his
uncorroborated statement given at the police station. But “corroborative evidence does not have to
prove the offense beyond a reasonable doubt, or even by a preponderance, as long as there is
substantial independent evidence that the offense has been committed, and the evidence as a whole
proves beyond a reasonable doubt that defendant is guilty.” Smith v. United States, 348 U.S. 147,
156 (1954). “Nor does it have to prove each element of the offense charged.” United States v.
Brown, 617 F.3d 857, 862 (6th Cir. 2010) (internal quotation marks omitted). “The purpose of
corroboration is to ensure the reliability of the confession or admission of the accused.” United
States v. Trombley, 733 F.2d 35, 37 (6th Cir. 1984).
So long as extrinsic evidence exists that tends to corroborate the confession, “the confession
as a whole is admissible, and some elements of the offense may be proven entirely on the basis of
a corroborated confession.” Id. at 38. “[O]ne available mode of corroboration is for the independent
evidence to bolster the confession itself and thereby prove the offense through the statements of the
accused.” Smith, 348 U.S. at 156 (internal quotation marks omitted). “And independent
corroboration of one part of the statement may corroborate the entire statement.” Brown, 617 F.3d
at 863.
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In this case, ample physical evidence was seized from Campbell to corroborate his confession
at the police station. Campbell admitted that he received the gun found on his person outside of
Max’s from a “junkie” in exchange for crack cocaine that Campbell provided in a transaction that
occurred approximately two weeks before his arrest in this case. In addition, Campbell was found
in possession of .8 grams of crack cocaine at the time of his arrest.
The firearm alone connects Campbell to the crime that he confessed to; namely, exchanging
crack cocaine for that specific firearm. See id. (holding that the “independently established fact that
certain specified items,” including the gun that Brown possessed, “were stolen from Helms’ house
thus lends support to Brown’s confession that he possessed the gun”). And the fact that Campbell
possessed crack cocaine at the time he was arrested shows that he had access to the drug around the
time he confessed to exchanging it for a firearm. Viewing the evidence in the light most favorable
to the prosecution, a rational juror could have found beyond a reasonable doubt that Campbell had
exchanged crack cocaine for the gun found on his person. The prosecution therefore presented
sufficient evidence for the jury to convict Campbell on Count 1.
2. Sufficiency of the evidence for conviction on Count 2 (possession of a firearm
in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c))
With respect to the sufficiency of the evidence in connection with his conviction on Count
2, Campbell first argues that his conviction on that count should be overturned because it is based
on the predicate offense in Count 1, which he contends should itself be set aside for lack of sufficient
evidence. For the reasons set forth in Part II.B.1 above, however, we conclude that there was
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sufficient evidence to support his conviction on Count 1. We therefore reject Campbell’s argument
that his conviction on Count 2 cannot be supported by the Count 1 drug offense.
Campbell next argues that his conduct did not violate 18 U.S.C. § 924(c) because trading
drugs for a firearm should not be considered a violation of that provision. Section 924(c) provides
in pertinent part as follows:
[A]ny person who, during and in relation to any crime of violence or drug trafficking
crime . . . for which the person may be prosecuted in a court of the United States,
uses or carries a firearm, or who, in furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment provided for such crime of violence or
drug trafficking crime . . . be sentenced to a term of imprisonment of not less than
5 years.
This court has held that § 924(c) criminalizes two separate offenses: (1) using or carrying a firearm
during or in relation to a drug-trafficking crime, which connotes “more than mere possession and
requires some active employment of the firearm by the person committing the drug offense”; and
(2) possession of a firearm in furtherance of a drug-trafficking crime, which requires a showing that
the “firearm was possessed to advance or promote the commission of the underlying drug trafficking
offense.” United States v. Combs, 369 F.3d 925, 932 (6th Cir. 2004) (brackets and internal quotation
marks omitted).
In Watson v. United States, 552 U.S. 74, 79 (2007), the Supreme Court held that a defendant
cannot be convicted under the “uses or carries” prong of § 924(c) simply by engaging in a barter
transaction in which the defendant exchanges drugs for a firearm. See id. (“[W]hen Watson handed
over the drugs for the pistol, the informant or the agent used the pistol to get the drugs, . . . but
regular speech would not say that Watson himself used the pistol in the trade.” (internal quotation
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marks omitted)). The Supreme Court, however, did not address the possession prong of § 924(c)
in Watson. Id. at 83.
But this court did reach the possession prong in United States v. Mackey, 265 F.3d 457, 461
(6th Cir. 2001). It held that the “in furtherance” language found in the possession prong of § 924(c)
requires that “the weapon must promote or facilitate the crime.” Id. Stated differently, there must
be a specific nexus between the drug crime and the possession of the firearm in order to violate the
possession prong of § 924(c). Id. at 462. And in United States v. Frederick, 406 F.3d 754, 764 (6th
Cir. 2005), this court held that “the acquisition of a firearm in exchange for drugs is a sufficient
specific nexus between the drugs and the guns to constitute possession in furtherance of the drug
sale.” Id. (internal quotation marks omitted).
So Campbell is correct that he cannot be convicted under the “uses or carries” prong of
§ 924(c). Based on Frederick, however, he was properly convicted under the “possession” prong
of the statute. The evidence showed that (1) he possessed a gun, and (2) he received the gun in
exchange for crack cocaine. We therefore conclude that a rational juror could have found beyond
a reasonable doubt that, based on this evidence, Campbell violated § 924(c)’s possession prong.
3. Sufficiency of the evidence for conviction on Count 3 (being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g))
Campbell next argues that there was insufficient evidence to support his conviction under
18 U.S.C. § 922(g) for being a felon in possession of a firearm. He specifically asserts that the
government failed to adequately prove the interstate-commerce nexus required by § 922(g). Section
922(g) provides that it is unlawful for any person convicted of a felony “to ship or transport in
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interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or
to receive any firearm or ammunition which has been shipped or transported in interstate or foreign
commerce.” To prove a violation of § 922(g), the government must establish that “(1) the defendant
had a previous felony conviction; (2) the defendant knowingly possessed the firearm specified in the
indictment; and (3) the firearm traveled in or affected interstate commerce.” United States v.
Campbell, 549 F.3d 364, 374 (6th Cir. 2008).
In this case, Campbell stipulated that he had been previously convicted of a felony. And the
evidence at trial showed that he possessed the firearm specified in the indictment, the same firearm
that he admitted to possessing on the night that he was arrested outside of Max’s. Because elements
one and two are satisfied, Campbell’s challenge focuses on the sufficiency of the evidence as it
relates to the third element, the interstate-commerce element. Although Campbell stipulated that the
firearm found in his possession in Tennessee was manufactured outside of the state, he asserts that
the government nonetheless failed to prove that the firearm affected interstate commerce.
To aid in his defense on this point, Campbell proffered an economics expert who would have
testified that Campbell’s alleged possession of the firearm at issue “had no real or material impact
on interstate commerce.” But the magistrate judge excluded the proposed testimony, concluding that
such testimony would have been irrelevant because “the government need only show that the
firearm, at some point in time, crossed a state line prior to defendant’s alleged possession.”
We review the magistrate judge’s decision to exclude the testimony of Campbell’s expert
witness under the abuse-of-discretion standard. See Kumho Tire Co. v. Carmichael, 526 U.S. 137,
142 (1999). The magistrate judge relied on Scarborough v. United States, 431 U.S. 563 (1977), in
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reaching his decision to exclude the expert’s testimony. In Scarborough, the Supreme Court
interpreted the predecessor to § 922(g). It held that a showing that the firearm had been, at some
time, in interstate commerce was sufficient to prove the interstate-commerce element of the statute.
Id. at 575. This court, in United States v. Fish, 928 F.2d 185, 186 (6th Cir. 1991), likewise decided
that “firearms possessed in a state other than the state of manufacture constitute firearms in or
affecting commerce.” It therefore concluded that “evidence that the firearm was manufactured
outside the state of possession is sufficient to prove an interstate commerce nexus in [a § 922(g)]
case.” Id.
Here, Campbell stipulated to the fact that the gun found in his possession in Tennessee was
manufactured in Massachusetts. This stipulation alone satisfies the interstate-commerce element of
§ 922(g). See id. The magistrate judge therefore did not abuse his discretion in excluding
Campbell’s proffered expert testimony as irrelevant. And because a rational juror could have found
beyond a reasonable doubt that the government had proven all of the elements for conviction under
§ 922(g), sufficient evidence existed for Campbell to be convicted on Count 3.
C. Sentencing
Campbell’s remaining issues all relate to his sentence. We review the sentence imposed by
the district court for reasonableness. Gall v. United States, 552 U.S. 38, 46 (2007). “The question
of whether a sentence is reasonable is determined using the abuse-of-discretion standard of review.”
United States v. Webb, 616 F.3d 605, 609 (6th Cir. 2010) (internal quotation marks omitted).
“Review for reasonableness has both procedural and substantive components.” Id. (internal
quotation marks omitted).
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When reviewing a sentence for procedural reasonableness, we look at three factors: whether
the district court “(1) properly calculated the applicable advisory Guidelines range; (2) considered
the other § 3553(a) factors as well as the parties’ arguments for a sentence outside the Guidelines
range; and (3) adequately articulated its reasoning for imposing the particular sentence chosen.”
United States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007). “To determine if the district court
properly calculated the applicable Guidelines range, we review the district court’s findings of fact
under the clear-error standard and its legal conclusions regarding application of the Guidelines de
novo.” United States v. Holcomb, 625 F.3d 287, 291 (6th Cir. 2010). “Assuming that the district
court’s sentencing decision is procedurally sound, the appellate court should then consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.” Gall,
552 U.S. at 51.
Campbell makes three procedural-reasonableness arguments: (1) that he should not have
been designated as a career offender or as an armed career criminal, (2) that the district court should
have granted his request for a downward variance, and (3) that the five-year consecutive mandatory-
minimum sentence under 18 U.S.C. § 924(c) should not have been applied to him. Each argument
is dealt with in turn below.
1. Armed-career-criminal and career-offender designations
Campbell asserts that his prior convictions are insufficient to trigger the applications of either
the ACCA’s enhanced-penalty provision or the Guidelines’ career-offender provision. For purposes
of applying these provisions, the PSR specifies that Campbell has been previously convicted of,
among other crimes, (1) facilitation of second-degree murder (arrest date May 18, 1996);
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(2) aggravated assault (arrest date May 28, 1996); and (3) two separate offenses of aggravated
robbery (arrest date October 1, 1996).
Campbell’s first challenge to the district court’s application of the ACCA’s enhanced-penalty
provision and the Guidelines’ career-offender provision is that his conviction for facilitation of
second-degree murder should not have been considered a violent crime. But Campbell has enough
prior violent-felony convictions to classify him as an armed career criminal under the ACCA and
as a career offender under the Guidelines even without consideration of his conviction for facilitation
of second-degree murder. We thus have no need to decide the proper classification of Campbell’s
facilitation offense. Our analysis of the application of the ACCA’s enhanced-penalty provision and
the Guidelines’ career-offender provision to Campbell will therefore be limited to his one conviction
for aggravated assault and his two convictions for aggravated robbery.
Campbell’s next challenge to the application of the ACCA’s enhanced-penalty provision and
to the career-offender provision of the Guidelines is that his prior felony convictions are insufficient
in number to invoke those provisions. He asserts that his two convictions for aggravated robbery
and the one for aggravated assault should constitute a single offense for purposes of applying
U.S.S.G. § 4B.1 because he was sentenced for all three convictions on the same day. Campbell thus
argues that, under the Guidelines, he has only one crime-of-violence conviction, a number
insufficient to qualify him as a career offender. And under the ACCA, he contends that he has at
most two prior convictions, which would leave him one short of the requisite three convictions
required for application of the ACCA.
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Because the ACCA’s enhanced-penalty provision and the Guidelines’ career-offender
provision use different counting rules for purposes of determining which prior felony convictions
count as predicate offenses, we will analyze each provision separately. We first turn to the ACCA,
which is codified in relevant part at 18 U.S.C. § 924(e). It provides that
[i]n the case of a person who violates section 922(g) [being a felon in possession of
a firearm] of this title and has three previous convictions . . . for a violent felony or
a serious drug offense, or both, committed on occasions different from one another,
such person shall be fined under this title and imprisoned not less than fifteen years.
Id. at § 924(e)(1).
“[T]o trigger a sentence enhancement under the ACCA, a defendant’s prior felony
convictions must involve separate criminal episodes.” United States v. Martin, 526 F.3d 926, 938
(6th Cir. 2008). “[O]ffenses are considered distinct criminal episodes if they occurred on occasions
different from one another.” Id. at 939 (internal quotation marks omitted). And “[t]wo offenses are
committed on occasions different from one another if it is possible to discern the point at which the
first offense is completed and the second offense begins.” Id. (internal quotation marks omitted).
The fact that the offenses were consolidated for sentencing, “even though such consolidation could
be relevant under the otherwise applicable Sentencing Guidelines,” is irrelevant under the ACCA
“so long as the separate offenses for which the defendant was convicted occurred at different times
and/or places.” Id.
In this case, Campbell was convicted of committing an aggravated assault on May 25, 1996,
and of committing aggravated robberies on September 15, 1996 and September 28, 1996. The dates
on which these crimes were committed show that each of these convictions represents a separate
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criminal episode under the ACCA. Campbell’s argument that the aggravated assault and the two
aggravated robberies should be considered a single offense because he was sentenced on the same
date for all three clearly has no merit for the purposes of applying § 924(e). See Martin, 526 F.3d
at 939.
In addition, Campbell concedes that the aggravated robberies and the aggravated assault are
violent felonies. Campbell is thus subject to the enhanced-penalty provision in § 924(e) because he
was found guilty of being a felon in possession of a firearm who has at least three qualifying prior
violent-felony convictions. We therefore conclude that the district court did not abuse its discretion
in designating Campbell as an armed career criminal under § 924(e).
Campbell raises similar arguments with regard to application of the Guidelines’ career-
offender provision. A defendant is a career offender under U.S.S.G. § 4B1.1 if
(1) the defendant was at least eighteen years old at the time the defendant committed
the instant offense of conviction; (2) the instant offense of conviction is a felony that
is either a crime of violence or a controlled substance offense; and (3) the defendant
has at least two prior felony convictions of either a crime of violence or controlled
substance offense.
Campbell does not contest that the first two prongs of § 4B1.1 are met here. Rather, he argues that
his prior violent-crime convictions for aggravated assault and aggravated robbery should be counted
as a single offense under the Guidelines because he was sentenced for all three offenses on the same
date.
U.S.S.G. § 4B1.2, which defines the terms used in § 4B1.1, states in relevant part that the
term “two prior felony convictions” means “(1) the defendant committed the instant offense of
conviction subsequent to sustaining at least two felony convictions of . . . crime[s] of violence . . . ,
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and (2) the sentences for at least two of the aforementioned felony convictions are counted separately
under the provisions of § 4A1.1(a) . . . .” And under U.S.S.G. § 4A1.1(a),
[p]rior sentences always are counted separately if the sentences were imposed for
offenses that were separated by an intervening arrest (i.e., the defendant is arrested
for the first offense prior to committing the second offense). If there is no
intervening arrest, prior sentences are counted separately unless (A) the sentences
resulted from offenses contained in the same charging instrument; or (B) the
sentences were imposed on the same day.
U.S.S.G. § 4A1.2(a)(2).
Here, Campbell has the following felony convictions relevant to applying U.S.S.G. § 4B1.1,
the career-offender provision: (1) aggravated assault, and (2) two aggravated robberies. He
committed the aggravated robberies, for which he was arrested on the same date, after his arrest for
the aggravated assault. Campbell ignores the arrest dates and instead argues that because he was
sentenced for the two aggravated robberies and the aggravated assault on the same date, these three
offenses should be counted as a single predicate felony under § 4B1.1. But this argument is without
merit because Campbell “committed the instant offense of conviction subsequent to obtaining at
least two prior felony convictions [involving] a crime of violence,” see § 4B1.1, that are counted
separately under § 4A1.1(a). Cf. United States v. Mosley, 635 F.3d 859, 864–65 (6th Cir. 2011)
(rejecting the defendant’s argument that the district court improperly enhanced his Guidelines range
under U.S.S.G. § 2K2.1(a) based on his two juvenile adjudications, concluding that the convictions
were properly considered because they were separated by an intervening arrest and that “[o]nce the
court determines that an intervening arrest separates two offenses, the analysis ends there” (brackets
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and internal quotation marks omitted)). We therefore conclude that the district court did not abuse
its discretion in designating and sentencing Campbell as a career offender.
2. Request for a variance
Campbell’s next argument is that the district court abused its discretion by failing to grant
his motion for a downward variance. He asserts that his mental health and his terrible upbringing
as a child warranted a below-Guidelines sentence. But the record shows that the court “set forth
enough to satisfy [us] that [it] has considered the parties’ arguments and has a reasoned basis for
exercising [its] own legal decisionmaking authority.” See Rita v. United States, 551 U.S. 338, 356
(2007).
First, the district court considered lengthy statements made by both Campbell’s attorney and
the government regarding Campbell’s request for a downward variance. The court also
acknowledged that it was “very familiar” with Campbell’s medical history, having ordered Campbell
examined by mental-health experts on at least three occasions. It further noted that Campbell had
a terrible upbringing.
The court concluded, however, after considering all of the above information, that the
evidence was insufficient to warrant a variance in this case. “[T]he sentencing judge [here]
repeatedly demonstrated that he was familiar with [Campbell’s] background and personal history. . . .
His explanation of the sentence imposed makes clear that he was not persuaded that these
circumstances provided a reason for choosing a sentence below the Guidelines range.” See United
States v. Madden, 515 F.3d 601, 611 (6th Cir. 2008). We therefore conclude that the district court
did not abuse its discretion in denying Campbell’s request for a downward variance.
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3. Application of the five-year consecutive mandatory-minimum sentence
under 18 U.S.C. § 924(c)
The final sentencing issue raised by Campbell is whether the five-year consecutive
mandatory-minimum sentence under 18 U.S.C. § 924(c) should apply to him. He argues that the
mandatory minimum in § 924(c) should not be imposed consecutively because one of his other
counts of conviction carries a higher mandatory minimum. In this case, the higher mandatory
minimum derives from § 924(e), the armed-career-criminal provision, which imposes a minimum
term of at least 15 years of imprisonment.
Since this appeal was filed, however, the Supreme Court has resolved this issue in Abbott v.
United States, 131 S. Ct. 18 (2010) (abrogating United States v. Almany, 598 F.3d 238 (6th Cir.
2010)). The relevant portion of 18 U.S.C. § 924(c) reads as follows:
Except to the extent that a greater minimum sentence is otherwise provided by this
subsection or by any other provision of law, any person who, during and in relation
to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or
who, in furtherance of any such crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or drug trafficking crime–
(i) be sentenced to a term of imprisonment of not less than 5 years . . . .
The Abbott defendants argued that the “except clause” in § 924(c) applies where a conviction
on another count yields a higher mandatory-minimum sentence than § 924(c). Abbott, 131 S. Ct. at
22. Conversely, the government argued that the “except clause” is limited to a situation where a
higher mandatory-minimum sentence is imposed for the conviction under § 924(c), not where a
higher mandatory-minimum sentence is imposed for a conviction on a different count. Id at 22–23.
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The Supreme Court, agreeing with the government’s interpretation, held that a “defendant
is subject to a mandatory consecutive sentence for a § 924(c) conviction, and is not spared from that
sentence by virtue of receiving a higher mandatory minimum on a different count of conviction.”
Id. at 23. Applying that reasoning to this case, Campbell is subject to a mandatory-minimum
consecutive sentence of five years of imprisonment under § 924(c) for possessing a firearm in
furtherance of a drug-trafficking crime, regardless of the fact that he is also subject to a 15-year
minimum sentence under § 924(e) for being an armed career criminal. And five consecutive years
is exactly the sentence that the district court imposed on the firearms-possession count (Count 2).
The district court therefore did not abuse its discretion in ordering that Campbell serve the five-year
mandatory minimum under § 924(c) consecutive to his other terms of imprisonment. See United
States v. Clark, 634 F.3d 874, 877 (6th Cir. 2011) (“ While Clark’s argument that the district court
erred by imposing consecutive mandatory minimum sentences pursuant to section 924(c) once had
traction, the Supreme Court's decision in Abbott v. United States, 131 S. Ct. 18, 22 (2010), forecloses
any further discussion on this issue.”).
Campbell advances no further arguments regarding the procedural or substantive
reasonableness of his sentence. The record makes clear that the district court adequately considered
the 18 U.S.C. § 3553(a) factors, sufficiently explained its reasoning for the sentence chosen, and
correctly calculated the applicable Guidelines range. In addition, because Campbell’s sentence is
at the bottom of the applicable Guidelines range of 360 months to life imprisonment, it is “accorded
a rebuttable presumption of [substantive] reasonableness.” Madden, 515 F.3d at 609. Campbell has
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not set forth any arguments to rebut that presumption. We therefore conclude that Campbell’s
sentence is both procedurally and substantively reasonable.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.
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