United States v. Lervon Campbell ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3527
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L ERVON L. C AMPBELL,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 09-CR-78—Lynn Adelman, Judge.
A RGUED A PRIL 27, 2010—D ECIDED A UGUST 17, 2010
Before R OVNER, W ILLIAMS, and SYKES, Circuit Judges.
W ILLIAMS, Circuit Judge. Lervon Campbell pled guilty
to being a felon in possession of a firearm and received
a fifteen-year mandatory minimum sentence. At the time
he was sentenced, Campbell had served approximately
nine months of an unrelated state sentence after his
supervised release had been revoked due to his arrest
on the federal charges. The district court imposed Camp-
bell’s federal sentence to run concurrently with the re-
2 No. 09-3527
mainder of that state sentence, but did not credit the
nine months he had already served, believing that
U.S.S.G. § 5G1.3(c) did not give it the authority to do
so. Campbell appeals, arguing that the district court
erred in concluding that it lacked the authority to
impose his federal sentence “fully” concurrently with
his state sentence. Because the district court had the dis-
cretion to adjust Campbell’s sentence to take into ac-
count the time he had served on his undischarged state
term, we vacate his sentence and remand for resentencing.
I. BACKGROUND
On December 29, 2008, Milwaukee police officers exe-
cuting a search warrant at Campbell’s home discovered
powder cocaine, crack cocaine, and marijuana, and saw
Campbell attempt to throw a gun out of his bedroom
window. At the time, Campbell was on supervised
release for prior unrelated Wisconsin state convictions.
As a result of the new arrest, the state of Wisconsin re-
voked his supervised release and ordered Campbell to
serve three years in prison on the state offenses.
Campbell pled guilty to being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1) and was
sentenced in federal court on August 31, 2009, by
which time he had served approximately nine months
of his state term. Campbell acknowledged that he
qualified as an armed career criminal under 18 U.S.C.
§ 924(e), subjecting him to a fifteen-year mandatory mini-
mum sentence. Campbell’s guidelines range was 188 to
235 months, but the district court concluded that the
No. 09-3527 3
statutory minimum was appropriate and ordered the
fifteen-year sentence to run concurrently with the re-
mainder of his three-year state term.
Campbell asked the court to adjust his federal sentence
to take into account the nine months that he had
already served, so that his federal term would be run
effectively “fully” concurrent to his state sentence. The
district court indicated that it was not opposed to doing
so, but denied the request after concluding that it
lacked the authority to do so. The court reasoned that
while U.S.S.G. § 5G1.3(b) would permit a downward
adjustment, Campbell’s situation fell under § 5G1.3(c),
which did not. Section 5G1.3(b) states that the district
court should adjust a federal sentence to account for any
period of imprisonment already served on a state term,
when the state sentence results from an offense that was
relevant conduct to the federal offense of conviction
and led to an increase in the defendant’s offense level.
Section 5G1.3(c), which applies to cases (like Campbell’s)
in which a defendant was on supervised release at the
time of the instant offense and had it revoked, pro-
vides that a sentence may be imposed to run “concur-
rently, partially concurrently, or consecutively to the
prior undischarged term of imprisonment to achieve a
reasonable punishment for the instant offense.” U.S.S.G.
§ 5G1.3(c). Unlike § 5G1.3(b), however, § 5G1.3(c) does
not authorize a downward adjustment. An application
note provides that, with the exception of extraordinary
cases, “[u]nlike subsection (b), subsection (c) does not
authorize an adjustment of the sentence for the instant
offense for a period of imprisonment already served
4 No. 09-3527
on the undischarged term of imprisonment.” U.S.S.G.
§ 5G1.3, cmt. 3(E).
The district court, after receiving supplemental briefing
from the parties, concluded that it had no authority to
grant an adjustment in a § 5G1.3(c) situation such as
Campbell’s, and denied the request. Campbell appeals.
II. ANALYSIS
Title 18, section § 3584 of the United States Code gives a
district court the discretion to impose a term of imprison-
ment either concurrently or consecutively to a prior
undischarged term, taking into consideration the factors
enumerated in 18 U.S.C. § 3553(a). The guideline at issue
in this case is U.S.S.G. § 5G1.3, which governs the im-
position of a sentence that is subject to another undis-
charged term of imprisonment.
The district court was correct in noting that subpart (b)
of § 5G1.3 expressly authorizes a downward adjustment
of a sentence to take into account a period already served
on an undischarged term of imprisonment, while sub-
part (c) does not. But the district court erred in concluding
that this distinction in the guideline limits its exercise
of discretion. Although § 5G1.3 expresses the Sentencing
Commission’s views about how a court’s § 3584 sen-
tencing discretion should be exercised, it does not
restrict that discretion after United States v. Booker, 543
U.S. 220 (2005). Post-Booker, “a debate about how much
discretion the Guidelines themselves confer has the air
of the scholastic.” United States v. Bangsengthong, 550 F.3d
No. 09-3527 5
681, 682 (7th Cir. 2008). Section 5G1.3 is an informative,
but not binding, articulation of a court’s power to
impose a sentence concurrently or consecutively under
§ 3584.
Nor does the § 924(e)(1) mandatory minimum to which
Campbell is subject preclude the sentence adjustment he
seeks. Section 924(e)(1) says that a defendant must “be
imprisoned . . . not less than fifteen years,” 18 U.S.C.
§ 924(e)(1) (emphasis added). We have on two occasions
held that this requirement is satisfied so long as a defen-
dant’s total period of incarceration, state and federal
combined, equals or exceeds the statutory minimum.
First, in United States v. Ross, 219 F.3d 592, 594-95 (7th
Cir. 2000), we held that under § 5G1.3(b) a district court
could impose a sentence below the § 924(e)(1) mandatory
minimum to account for time served on a related undis-
charged sentence, so long as the defendant’s total period
of state and federal imprisonment equaled the statutory
minimum. There, the defendant broke into an Indiana
home and stole a handgun, leading to federal charges
relating to possession of a firearm and state charges of
residential burglary. Id. at 593. By the time the de-
fendant was sentenced in federal court, he had served
34 months of the sentence for his state burglary convic-
tion. Id. at 594. Ross faced a fifteen-year mandatory mini-
mum sentence as an armed career criminal under
§ 924(e)(1), and the district court sentenced him to 188
months. Id. Ross asked the court to sentence him to 154
months to take into account the 34 months he had
already served on the related state conviction, but the
6 No. 09-3527
court declined to do so and instructed the Bureau of
Prisons to credit him the time instead. Id. On appeal, we
vacated the sentence, holding that the judge could
adjust the defendant’s federal sentence downward under
§ 5G1.3(b), so long as the total time served in state and
federal custody was not lower than the federal statutory
minimum. Id. at 594-95. We concluded that § 924(e)
“does not specify any particular way in which that im-
prisonment should be achieved,” id. at 595, and thus:
The computation of the total term of imprison-
ment for purposes of § 924(e) may, consistently
with Application Note 2 to § 5G1.3, be accom-
plished by adding up the number of months the
defendant has served on the related conviction
and the number of months assessed in the federal
judgment. The total must equal or exceed the
statutory mandatory minimum of 180 months.
Id. To hold otherwise, we concluded, would be to “exalt
form over substance.” Id. at 594. We noted that giving a
credit in this manner “is not a departure from the guide-
line range [which would be prohibited except under
18 U.S.C. §§ 3553(e) or (f)]; it is simply another way of
achieving the required period of imprisonment.” Id. at 595.
More recently, in United States v. Cruz, 595 F.3d 744, 746
(7th Cir. 2010), we reaffirmed Ross’s interpretation of
§ 924(e). We confirmed Ross’s conclusion that a judge
applying § 924(e) “could deduct that number of months
from the federal sentence as long as the combined length
of the state and federal prison sentences was not less
than the federal statutory minimum.” Id. (contrasting
No. 09-3527 7
mandatory minimum language in § 924(e) with that in 21
U.S.C. § 841(b)(1)(A)). Other circuits have similarly inter-
preted § 924(e). See, e.g., United States v. Drake, 49 F.3d
1438, 1440-41 (9th Cir. 1995); United States v. Kiefer, 20 F.3d
874, 876-77 (8th Cir. 1994).
The fact that Ross involved § 5G1.3(b) and not § 5G1.3(c)
does not limit Ross’s applicability to this case. It is § 3584
that gives a sentencing court the discretion to impose
a concurrent sentence, taking into consideration the
factors set forth in § 3553(a). 18 U.S.C. § 3584(b). Section
5G1.3 is advisory, and thus its distinction between sub-
sections (b) and (c) is informative in, but not binding
on, the way a district court exercises its § 3584 discretion.
And clearly, Ross’s interpretation of § 924(e) does not
depend on the applicability of a specific guideline. So,
contrary to its conclusion at sentencing, the district court
had the discretion to adjust Campbell’s sentence to
account for the time he had served on his state revocation.
Of course, the question of whether the court has this
discretion is distinct from the question of how it should
be exercised. The time for which Campbell seeks credit
is from a prison term for conduct wholly unrelated to that
underlying his federal sentence, and the argument can
be made that adjusting his term for that time provides
him with something of a windfall. Subsections (b) and (c)
of § 5G1.3 reflect a sensible policy distinction between
treatment of undischarged terms of imprisonment that
involve relevant conduct to the instant offense, and
those that do not. On remand, should the district court
decide to make the adjustment Campbell seeks, its
8 No. 09-3527
reasons for doing so should be articulated in light of the
§ 3553(a) factors and the policy considerations set
forth in § 5G1.3. If the district court disagrees with the
methodology set forth in § 5G1.3—which it necessarily
will be doing if it grants the adjustment—an adequate
explanation to “allow for meaningful appellate review
and to promote the perception of fair sentencing” should
be given. Gall v. United States, 552 U.S. 38, 50 (2007); see
also United States v. Plantan, 102 F.3d 953, 956 (7th
Cir. 1996) (court has “significant discretion to impose a
sentence which provides for a reasonable incremental
punishment given the facts of the case, so long as it
states its reasons for doing so.”).
III. CONCLUSION
Campbell’s sentence is V ACATED and the case is
R EMANDED for resentencing.
8-17-10