NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 25, 2011
Decided June 1, 2011
Before
RICHARD A. POSNER, Circuit Judge
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
No. 10‐3790
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Eastern District of Wisconsin.
v. No. 09‐CR‐78
LERVON L. CAMPBELL, Lynn Adelman,
Defendant‐Appellant. Judge.
O R D E R
Lervon Campbell pleaded guilty to being a felon in possession of a firearm,
18 U.S.C.
§ 922(g)(1), and received the 15‐year mandatory minimum sentence to run concurrent to an
unrelated state sentence he was then serving. We vacated the sentence on appeal and
remanded the case so that the district court could exercise its discretion to adjust Campbell’s
sentence to account for the time he had served on his undischarged state term. United States
v. Campbell,
617 F.3d 958, 961‐62 (7th Cir. 2010). On remand the district court granted
Campbell’s request to make the sentences fully concurrent and adjusted his sentence
downward to account for the 24 months that Campbell already had served in state prison.
Campbell now appeals his new sentence, but his appointed counsel has concluded that the
appeal is frivolous and seeks to withdraw under Anders v. California,
386 U.S. 738, 744
(1967). We invited Campbell to comment on counsel’s submission, see CIR. R. 51(b), but he
No. 10‐3790 Page 2
did not respond. Our review is limited to the potential issue identified in counsel’s facially
adequate brief. See United States v. Cano‐Rodriguez,
552 F.3d 637, 638 (7th Cir. 2009).
The only issue that counsel considers raising is whether Campbell could challenge
the district court’s determination, at his initial sentencing, that he qualified as a career
offender under the Armed Career Criminal Act,
18 U.S.C. § 924(e). Counsel considers
whether Campbell could argue that the ACCA does not apply to him because his three
qualifying burglary convictions did not involve illegal entries of a “dwelling,” as required
under § 4B1.2(a)(2) of the Sentencing Guidelines. But as counsel points out, this argument is
not only frivolous, but also waived because, in his plea agreement, Campbell stipulated that
he qualified as an ACC for having three qualifying burglary convictions. See United States v.
Harris,
230 F.3d 1054, 1058‐59 (7th Cir. 2000). Moreover, the law‐of‐the‐case doctrine would
preclude Campbell from challenging the career‐offender penalty for the first time in this
successive appeal. See United States v. Sumner,
325 F.3d 884, 891 (7th Cir. 2003).
Even if Campbell could raise the issue, it would be fruitless to argue that Campbell
did not qualify as an armed career criminal. “[A] person has been convicted of burglary for
purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact
definition or label, having the basic elements of unlawful or unprivileged entry into, or
remaining in, a building or structure, with intent to commit a crime.” Taylor v. United States,
495 U.S. 575, 599 (1990); see United States v. Woods,
233 F.3d 482, 485 (7th Cir. 2000). Thus
burglary includes breaking into structures not limited to residential dwellings, Taylor,
495
U.S. at 576; United States v. Gallman,
907 F.2d 639, 644 (7th Cir. 1990), and his convictions
count four purposes of § 924(e). The Supreme Court specifically rejected Campbell’s belief
that a burglary only qualifies if it involves a residential dwelling. Taylor,
495 U.S. at 576.
Accordingly, we GRANT the motion to withdraw and DISMISS Campbell’s appeal.
