United States v. Campbell, Kenra S. ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 1, 2006*
Decided December 14, 2006
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-1841
UNITED STATES OF AMERICA, Appeal from the United States
Plaintiff-Appellee, District Court for the
Central District of Illinois.
v.
No. 05-40112-001
KENRA SHARAY CAMPBELL,
Defendant-Appellant. Michael M. Mihm, Judge.
ORDER
Kenra Campbell pleaded guilty without a plea agreement to possession of a
firearm by a felon. See 18 U.S.C. § 922(g)(1). After increasing her offense level because
*
On October 2, 2006, we granted the appellant’s motion to waive oral
argument. Therefore, the appeal is submitted on the briefs and the record. See Fed.
R. App. P. 34(f).
No. 06-1841 Page 2
she tried to shoot a police officer with the gun and created a substantial risk of serious
bodily injury to the officer, the district court sentenced Campbell to 120 months’
imprisonment. See U.S.S.G. §§ 2K2.1(b)(5), 3A1.2(c)(1). Campbell argues that she
should be resentenced because the district court’s finding that she pointed the gun at
the officer and pulled the trigger is clearly erroneous. She also argues that her
sentence is unreasonably high. Because the court’s factual finding is not clearly
erroneous and Campbell’s prison sentence is reasonable, we affirm.
According to the probation officer’s account in the presentence investigation
report, Officer Brian Morrissey, from the East Moline, Illinois, police force,
apprehended Campbell after receiving a disturbance call reporting that a person was
being attacked by four people, one of whom matched Campbell’s description. Once
Morrissey arrived at the caller’s location, he spotted Campbell fleeing and gave
pursuit. He soon caught up with her and escorted her to his squad car. As Morrissey
began to pat Campbell down for weapons, she tried to pull away. He then handcuffed
her right hand, but before he could secure her left hand, she reached into her
waistband, pulled out a semi-automatic pistol, and pointed it at his thigh. As Morrissey
grabbed for Campbell’s left hand, he heard the hammer of the pistol fall. Morrissey,
who is a foot taller and 115 pounds heavier than Campbell, wrested control of the gun
from her. He then inspected the gun and found that it was loaded with five live rounds
of ammunition. The firing pin indicated that the trigger had been pulled, but there had
been no round in the chamber at the time.
Based upon these facts, the probation officer recommended that the district
court apply U.S.S.G. § 2K2.(b)(5), which provides for a four-point increase in offense
level when a defendant convicted under § 922(g) “used or possessed any firearm or
ammunition in connection with another felony offense.” The probation officer reasoned
that by pointing the gun at Morrissey and pulling the trigger, Campbell possessed the
gun in connection with the felony offense of attempted aggravated battery with a
firearm. See 720 ILCS 5/8-4, 5/12-4.2(a)(1), (b) (defining aggravated battery with a
firearm as “knowingly or intentionally by means of the discharging of a firearm []
caus[ing] any injury to another person”); People v. Jones, 682 N.E.2d 441, 443 (Ill. App.
Ct. 1997) (noting that Illinois recognizes the offense of attempted aggravated battery).
Alternatively, the probation officer noted that by pulling the trigger of a loaded gun
pointed in the direction of another person Campbell attempted to commit aggravated
discharge of a firearm, also a felony offense. See 720 ILCS 5/8-4, 5/24-1.2(a)(2). The
probation officer recommended an additional six-level increase because Campbell
created a substantial risk of serious bodily injury to a law enforcement officer. See
U.S.S.G. § 3A1.2(c)(1). The probation officer calculated a guidelines imprisonment
range of 130 to 162 months, making the 10-year statutory maximum the guidelines
sentence. See 18 U.S.C. § 924(a)(2); U.S.S.G. § 5G1.1(a).
No. 06-1841 Page 3
Campbell objected to the report on two grounds. First, she contended that the
government failed to prove by a preponderance that she possessed the gun in
connection with a felony offense. Second, Campbell asserted that it would be
impermissible to impose two guidelines adjustments based on the same conduct—
attempting to shoot Officer Morrissey. Campbell chose not to testify at the sentencing
hearing and instead offered a police report documenting that during a post-arrest
interview she had denied pointing the gun at Morrissey or pulling the trigger and had
said she was only trying to “ditch the handgun” because she did not legally possess it.
Counsel argued that, given the speed of the incident and the size disparity between
Campbell and Morrissey, it was more likely that Morrissey caused the gun to fire
during his effort to disarm her.
Officer Morrissey, however, did testify at sentencing and not only repeated the
probation officer’s account but also re-enacted the events for the court. Morrissey
insisted that when Campbell grabbed the gun she was holding it with her finger
through the trigger guard as if she “were going to fire it.” He clarified that he heard the
hammer of the gun fall while the gun was pointed at his leg. He also testified that he
could not have pulled the trigger because he grabbed Campbell’s hand below the
trigger guard.
The district court believed Officer Morrissey and overruled both of Campbell’s
objections. After acknowledging that the application of both § 2K2.1(b)(5) and
§ 3A1.2(c)(1) turned on who caused the gun to fire, the district court determined that
the evidence was “much more consistent” with a finding that Campbell intentionally
pulled the trigger while pointing the gun at Morrissey’s leg. The court reasoned that
Campbell’s explanation that she drew the gun to get rid of it, while being handcuffed
by Morrissey, “doesn’t pass the laugh test.” The district court also held that the upward
adjustments based on Campbell’s use of the gun in an attempted aggravated battery
and Morrissey’s status as a law enforcement officer could both be applied without
double-counting because they addressed different aspects of her conduct—the act of
pulling the trigger and the identity of the victim.
On appeal Campbell argues that the district court clearly erred in finding that
she pointed the gun at Officer Morrissey and pulled the trigger. We review findings of
fact and credibility determinations for clear error, United States v. Woods, 233 F.3d
482, 484 (7th Cir. 2000), and defer to the district court’s credibility determinations
“unless the court credited testimony that was essentially unbelievable as a matter of
law,” United States v. Smith, 308 F.3d 726, 746 (7th Cir. 2002). There is no clear error
in the district court’s decision to credit the presentence investigation report and Officer
Morrissey’s sworn testimony over the unsworn, hearsay statement of the defendant.
See United States v. Torres-Ramirez, 213 F.3d 978, 980-81 (7th Cir. 2000) (“When the
sentence rests on testimony under oath . . . it is enough that the judge believe the
No. 06-1841 Page 4
witness—unless the testimony is illogical or contradicted by documents or other
physical evidence, making it clearly erroneous to accept the witness’s version of
events.”); United States v. Krankel, 164 F.3d 1046, 1054-55 (7th Cir. 1998) (holding
that “bald, unsupported assertions” by the defendant cannot refute presentence
investigation report). Campbell directs us to no inconsistencies in the credited
testimony; she argues only that Morrissey’s version of events is improbable given their
size disparity and the force with which Morrissey grabbed her hand. We see no reason
to overturn the district court’s findings of fact, made with the benefit of a re-enactment
of the events and the opportunity actually to observe the size disparity between
Morissey and Campbell.
Campbell also challenges the reasonableness of her prison sentence, arguing
that the sentencing court should have exercised its discretion to impose a shorter term
because of her mental health problems, particularly undiagnosed depression. Her
sentence, capped by the statutory maximum, falls below the properly calculated
guidelines range and is therefore presumed reasonable. See United States v. George,
403 F.3d 470, 473 (7th Cir. 2005) (“It is hard to conceive of below-range sentences that
would be unreasonably high.”); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005). The district court considered Campbell’s mental health issues during sentencing
and, pursuant to 18 U.S.C. § 3553(a)(2), selected the 120-term of imprisonment. We
note, finally, that we have taken into account the fact that the Supreme Court has
granted certiorari in Rita v. United States, 127 S.Ct. 551 (2006) (No. 06-5754), in order
to decide whether a presumption of reasonableness is consistent with its Booker
decision. In Campbell’s case, however, the district court’s attention to the § 3553(a)
factors and our own review of the record satisfy us that the ultimate sentence was
reasonable, even without the benefit of any such presumption.
Accordingly, the judgment of the district court is AFFIRMED.