United States v. Daniel Campbell ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-1013
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Daniel Lee Campbell
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Dubuque
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Submitted: June 9, 2014
Filed: July 1, 2014
[Unpublished]
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Before LOKEN, BEAM, and GRUENDER, Circuit Judges.
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PER CURIAM.
On the evening of June 10, 2013, at approximately 11:00 p.m., the Dubuque
Police Department received a 911 call that a male was displaying a handgun. Officer
Jonathan Brokens arrived on the scene and observed Daniel Campbell, who matched
the description of the male from the emergency call. When Officer Brokens exited his
marked police car to speak to Campbell, Campbell fled and ran through an alley.
Officer Brokens chased Campbell and saw two guns in Campbell’s hands. As Officer
Brokens was chasing Campbell, Officer Alex Scott arrived in the alley. Officer Scott
also began chasing Campbell. Campbell ignored the officers’ commands to stop
running, and both officers observed Campbell throw a gun from his left hand as he
continued running through the alley. Soon after, Campbell lifted his right hand across
the left side of his body and fired a single shot over his left shoulder with the second
gun. Both officers, who were pursuing Campbell from behind him, heard a gunshot
and saw a muzzle flash as Campbell fired the single shot. Campbell then threw the
second gun as he continued to run from the officers. The officers eventually
apprehended Campbell and arrested him. Officers searched the area where the
shooting took place. They located both handguns where Officers Brokens and Scott
observed Campbell throw them. The second handgun had a spent casing jammed in
the gun along with a fully loaded magazine.
On June 27, 2013, a federal grand jury returned an indictment, charging
Campbell with being a felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). A jury found Campbell guilty. In calculating Campbell’s advisory
sentencing guidelines range, the district court1 applied a four-level enhancement under
USSG § 2K2.1(b)(6) for possessing a firearm in connection with another felony
offense. The court found that Campbell had violated Iowa Code § 708.8, which
provides that “[a] person who goes armed with any dangerous weapon with the intent
to use without justification such weapon against the person of another person”
commits the felony of “going armed with intent.” The district court also applied a six-
level enhancement under § 3A1.2(c)(1) for creating a substantial risk of bodily injury
to police officers during flight. Based upon a total offense level of 26 and Campbell’s
criminal history category of III, Campbell’s advisory sentencing guidelines range was
1
The Honorable James E. Gritzner, Chief Judge, United States District Court
for the Southern District of Iowa, sitting by designation in the Northern District of
Iowa.
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78 months’ to 97 months’ imprisonment. The court sentenced him to 97 months’
imprisonment, from which Campbell now appeals.
Campbell first challenges the district court’s application of the four-level
enhancement under USSG § 2K2.1(b)(6) for possession of a firearm in connection
with another felony offense. “We review this finding for clear error and consider
whether [Campbell’s] actions supported the district court’s finding that [he]
committed going armed with intent under Iowa Code § 708.8.” United States v.
Mosley, 672 F.3d 586, 589 (8th Cir. 2012) (internal citation omitted). “Iowa Code
§ 708.8 ‘requires proof that the defendant carried a dangerous weapon with the
specific intent to use it to inflict serious injury.’” Id. (quoting United States v. Gomez-
Hernandez, 300 F.3d 974, 980 (8th Cir. 2002)). Campbell claims that his actions did
not violate § 708.8 because he lacked the specific intent to inflict serious injury on
Officers Brokens and Scott. Campbell claims that the evidence only supports a
finding that he accidentally discharged the gun or, at most, supports a finding that he
intended to scare the officers. He argues that he accidentally fired the weapon because
he had just thrown the gun in his left hand in a “sweeping motion.” Thus, he claims,
“[t]he natural motion to throw the gun in his right hand a distance to the right would
have been for [him] to bring his right arm up toward his left shoulder and then fling
the gun to his right,” and he “could easily have accidentally pulled the trigger.” He
contends that the evidence, at most, supports a finding that he intended to scare, not
injure, the officers because he did not aim the gun at the officers. Campbell points to
Officer Scott’s testimony that Officer Scott and Officer Brokens were behind
Campbell to his right when Campbell fired the shot over his left shoulder. He claims
that this testimony demonstrates that he did not aim the gun at the officers as he would
have if he had intended to injure them.
The district court did not clearly err in finding that Campbell intended to use
the gun to inflict serious injury. When Campbell saw Officer Brokens, he
immediately fled down an alley. As Campbell fled from Officers Brokens and Scott,
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he ignored their commands to stop running. Campbell then fired a shot over his left
shoulder behind him in the general direction of where the officers were pursuing him.
Both officers heard the shot and saw the flash of the muzzle. After Campbell fired the
shot, the spent casing jammed in the gun. Campbell then discarded the weapon and
continued running. In light of the fact that Campbell fired a shot over his left shoulder
when the officers were pursuing him from behind at night in a dark alley, the district
court did not clearly err by concluding that Campbell had the specific intent to inflict
serious injury. See United States v. Olson, 646 F.3d 569, 573-74 (8th Cir. 2011)
(holding that “intend[ing] to escape by firing [a] weapon at the officers. . . . would
constitute . . . attempted battery;” that is, “an intended effort to cause bodily harm to
another which falls short of success”); see also Mosley, 672 F.3d at 589 (holding that
it was not clearly erroneous for the district court to conclude that the defendant
intended to inflict serious injury where the defendant was carrying a weapon and
making threats against another person).2
Campbell next argues that the district court erred in applying the six-level
enhancement under USSG § 3A1.2(c)(1).
Section 3A1.2 provides a six-level enhancement to the base
offense level for any defendant, who “knowing or having
reasonable cause to believe that a person was a law
enforcement officer, assaulted such officer during the
course of the offense or immediate flight therefrom” and
did so “in a manner creating a substantial risk of seriously
bodily injury.”
2
For the first time in his reply brief, Campbell argues that the district court erred
in applying this enhancement because the Government did not present any evidence
that he had the specific intent to harm another person at the time he armed himself,
which he claims is required in order to violate Iowa Code § 708.8. See State v.
Matlock, 715 N.W.2d 1, 6 (Iowa 2006). However, Campbell did not raise this
argument in his opening brief, so it is waived. See United States v. Anderson, 570
F.3d 1025, 1031 n.3 (8th Cir. 2009).
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Olson, 646 F.3d at 572 (quoting USSG § 3A1.2(c)(1)). The enhancement applies if
a defendant intends to cause bodily harm or intends to cause, and reasonably does
cause, the victim to fear immediate bodily injury. See id. at 573. Campbell asserts
that the evidence does not support a finding that he intended to harm the officers or
intended to cause them to experience fear. Again, we review the district court’s
factual findings only for clear error. Id. at 574. As we concluded above, it was not
clearly erroneous for the district court to find that Campbell intended to cause serious
bodily injury when he shot in the general direction of the officers pursuing him at
night in a dark alley as he fled. And for those same reasons, it was not clearly
erroneous for the court to conclude that Campbell intended to cause Officers Brokens
and Scott to experience fear of immediate bodily injury when Campbell pointed a gun
over his shoulder and fired a shot in the general direction of the officers.
Accordingly, we affirm Campbell’s sentence.3
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3
As Campbell does not challenge the substantive reasonableness of his sentence,
we need not address that issue. See United States v. Brown, 550 F.3d 724, 729 n.4
(8th Cir. 2008).
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