United States v. Roger Campbell, II ( 2019 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10561
Plaintiff-Appellee,
D.C. No.
v. 2:09-cr-01297-
SRB-1
ROGER WILLIAM CAMPBELL II, AKA
Roger William Campbell,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted September 12, 2018
San Francisco, California
Filed September 11, 2019
Before: Marsha S. Berzon, Johnnie B. Rawlinson,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Rawlinson;
Dubitante opinion by Judge Berzon
2 UNITED STATES V. CAMPBELL
SUMMARY*
Criminal Law
Affirming a sentence imposed upon revocation of
multiple supervised release terms, the panel held that neither
the negative pregnant principle nor the rule of lenity deprives
a sentencing court of its discretionary authority under
18 U.S.C. § 3584(a) to impose consecutive terms of
imprisonment following revocation of concurrent supervised
release terms.
The panel held because the district court acted within its
discretion in imposing consecutive sentences, no plain error
occurred.
Dubitante, Judge Berzon wrote to encourage the U.S.
Sentencing Commission to resolve the anomaly in the
Sentencing Guidelines, which are far from lucid in this
scenario in which the district court turned the defendant’s
single violation of the conditions of his concurrent supervised
release terms into multiple, consecutive terms of
confinement, resulting in a prison sentence that is longer than
the original term of imprisonment.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. CAMPBELL 3
COUNSEL
Daniel L. Kaplan (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender; Office of
the Federal Public Defender, Phoenix, Arizona; for
Defendant-Appellant.
Caitlin B. Noel (argued), Assistant United States Attorney;
Krissa M. Lanham, Deputy Appellate Chief; Elizabeth A.
Strange, First Assistant United States Attorney; United States
Attorney’s Office, Phoenix, Arizona; for Plaintiff-Appellee.
OPINION
RAWLINSON, Circuit Judge:
We must decide whether the district court committed
plain error by imposing consecutive prison terms following
revocation of multiple supervised release terms. Because we
conclude that Chapter 7 of the United States Sentencing
Guidelines (Guidelines) does not preclude the imposition of
consecutive sentences under these circumstances, we affirm
the judgment of the district court.
I. BACKGROUND
While working for American Express, defendant Roger
William Campbell (Campbell) defrauded a supplier by
identifying certain parts covered by the contract between the
supplier and American Express as defective, and ordering
replacement parts from the supplier. Rather than returning
the “defective” parts to the supplier upon receipt of the
replacement parts, Campbell sold the replacement parts to
4 UNITED STATES V. CAMPBELL
third parties. Following a guilty plea, Campbell was
convicted of 35 counts of mail fraud. The district court
sentenced Campbell to 35 concurrent 24-month prison terms
followed by 35 concurrent three-year supervised release
terms. The court also imposed a special assessment of $3,400
with restitution in the amount of $857,616. After Campbell
began serving his supervised release term, Campbell’s
probation officer reported that Campbell failed to perform
community service, pay restitution, submit financial reports,
or remain in contact.
In August, 2015, Campbell’s probation officer filed a
petition to revoke supervised release, and requested a warrant
for Campbell’s arrest, which the district court issued. After
his arrest in 2017, Campbell admitted to a Grade C violation
of his supervised release for failing to contact his probation
officer.
The probation officer calculated Campbell’s sentencing
range as three to nine months’ imprisonment under Chapter
7 of the Guidelines. At the disposition hearing, the probation
officer recommended a sentence of 30 months’ imprisonment
for five counts (five consecutive six-month terms) and
30 concurrent one-day terms for 30 counts. The probation
officer recommended two concurrent terms of supervised
release: (1) 30 months for each of five counts, and
(2) 35 months and 29 days for each of 30 counts. The
government concurred with the probation officer’s
recommendation.
Campbell’s counsel requested the court to “consider a
sentence within the policy statement, . . . within the three to
nine months range.” The district court responded that the
recommended sentence was “actually within the policy
UNITED STATES V. CAMPBELL 5
statement[;] it’s just consecutive.” The district court
ultimately imposed sentences of 25 months’ imprisonment
(consecutive five-month terms for each of five counts) and
30 concurrent one-day terms for each of thirty counts, to run
concurrently with the 25-month sentence. The district court
imposed two concurrent supervised release terms: (1) a 31-
month term for each of five counts, and (2) a 35-month-and-
one-day term for each of 30 counts. Campbell timely
appealed.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 18 U.S.C. § 3742 and
28 U.S.C. § 1291. “We review a sentence imposed on
revocation of supervised release under the Booker1
reasonableness standard. . . .” United States v. Montes-Ruiz,
745 F.3d 1286, 1289 (9th Cir. 2014) (citation and internal
quotation marks omitted). We review de novo the district
court’s interpretation of the Guidelines, and the district
court’s factual findings for clear error. See United States v.
Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc).
Generally, we review the district court’s application of the
Guidelines for abuse of discretion. See id. However, when
a defendant does not raise an objection to his sentence before
the district court, we apply plain error review. See United
States v. Gallegos, 613 F.3d 1211, 1213 (9th Cir. 2010).
Although Campbell requested the district court to consider
imposing a concurrent sentence, he raised no objection to the
actual sentence imposed. A request to consider a position
does not equate to an objection. See id. (applying plain error
1
United States v. Booker, 543 U.S. 220, 247 (2005).
6 UNITED STATES V. CAMPBELL
review when defendant requested a concurrent sentence but
raised no objection to the sentence imposed).
“Plain error is (1) error, (2) that is plain, and (3) that
affects substantial rights. If these three conditions are met,
we may then exercise [our] discretion to grant relief if the
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v.
Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009) (citations and
internal quotation marks omitted).
III. DISCUSSION
We have previously held that 18 U.S.C. § 3584(a)
(§ 3584(a)) confers discretion to impose consecutive or
concurrent imprisonment terms upon revocation of concurrent
supervised release terms. See 18 U.S.C. § 3584(a) (“If
multiple terms of imprisonment are imposed on a defendant
at the same time, . . . the terms may run concurrently or
consecutively . . .”); see also United States v. Jackson,
176 F.3d 1175, 1178–79 (9th Cir. 1999) (per curiam) (relying
upon the language of § 3624 to impose consecutive terms of
imprisonment following the revocation of concurrent
supervised release terms); United States v. Xinidakis,
598 F.3d 1213, 1217 (9th Cir. 2010) (citing Jackson in
reaching the same conclusion). Taking a different approach,
Campbell argues that Chapter 7 mandates the imposition of
concurrent imprisonment terms upon revocation of concurrent
supervised release terms. Campbell specifically relies upon
the “negative pregnant rule” and the “rule of lenity” to shape
his argument that Chapter 7 of the Guidelines precludes the
imposition of consecutive terms of imprisonment following
revocation of supervised release involving concurrent terms
of supervised release.
UNITED STATES V. CAMPBELL 7
Campbell describes the “negative pregnant rule” as
embodying a principle from the Supreme Court decision in
Russello v. United States, 464 U.S. 16, 23 (1983) (“Where
Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion. . . .”)
(citations and alteration omitted).
Notwithstanding that § 3584(a) explicitly provides that
terms of imprisonment may run concurrently or
consecutively, Campbell seeks to apply the negative pregnant
rule to Chapter 7 of the Guidelines. Campbell asserts that
because other provisions of Chapter 7 expressly provide for
consecutive sentences upon revocation of supervised release,
the absence of an express provision for consecutive
sentencing upon revocation of multiple concurrent supervised
release terms militates against the availability of such a
sentence.
Although we have not previously addressed this precise
issue, two of our sister circuits have rejected Campbell’s
argument predicated on the negative pregnant rule. In United
States v. Quinones, 136 F.3d 1293 (11th Cir. 1998), the
Eleventh Circuit noted that § 3584(a) “permits a court to
order multiple terms to run consecutively.” Id. at 1294
(footnote reference omitted). The court was not persuaded
that the lack of a policy statement in Chapter 7 regarding
“concurrence or consecutiveness” altered the court’s
discretion. Id. at 1295. Rather the court concluded that “this
silence [on concurrence or consecutiveness] leaves intact the
district court’s statutory discretion.” Id.
8 UNITED STATES V. CAMPBELL
The Fifth Circuit has ruled similarly on this issue. In
United States v. Gonzalez, 250 F.3d 923 (5th Cir. 2001), the
defendant argued that “consecutive prison sentences after
revocation of concurrent terms of supervised release” should
be precluded. Id. at 926. Relying on the Eleventh Circuit’s
decision in Quinones, the Fifth Circuit “reject[ed] Gonzalez’s
contention that the policy statements in chapter seven of the
Sentencing Guidelines should be read to preclude consecutive
sentencing.” Id. at 929 n.8 (citing Quinones, 136 F.3d
at 1295); see also United States v. Johnson, 138 F.3d 115,
118 (4th Cir. 1998) (rejecting the argument that Chapter 7
does not “authorize consecutive sentences for simultaneous
violations of supervised release”) (internal quotation marks
omitted); United States v. Cotroneo, 89 F.3d 510, 513 (8th
Cir. 1996) (concluding in the context of revocation of
concurrent supervised release terms that “the District Court
retains discretion to impose either concurrent or consecutive
sentences after revocation of a defendant’s supervised
release”).
Campbell’s reliance on the rule of lenity fares no better.
Campbell urges us to resort to the rule of lenity to interpret
“Chapter 7’s silence-and thus, ambiguity-on the question of
consecutive sentencing in this context as a recommendation
against such a practice.” (emphasis in the original).
However, we have defined ambiguity for the purpose of
applying the rule of lenity as a “grievous” lack of clarity even
after applying all interpretive aids to construe the language of
the Guidelines. United States v. D.M., 869 F.3d 1133, 1144
(9th Cir. 2017); see also United States v. Kelly, 874 F.3d
1037, 1049 (9th Cir. 2017). Our analysis of Chapter 7 of the
Guidelines is significantly advanced by the ultimate
interpretive aid-the governing statute, which specifically
bestows discretion upon the sentencing court to impose
UNITED STATES V. CAMPBELL 9
consecutive sentences when multiple sentences are under
consideration. See 18 U.S.C. § 3584(a) (“If multiple terms of
imprisonment are imposed on a defendant at the same time,
. . . the terms my run concurrently or consecutively . . .”).
Contrary to Campbell’s position that silence in Chapter 7
regarding consecutive sentences creates ambiguity triggering
the rule of lenity, we agree with the Fifth and Eleventh
Circuits that in the absence of a specific policy statement in
Chapter 7, we revert to the statutory provision conferring
discretion on the sentencing court. See Quinones, 136 F.3d
at 1295 (“Those [Chapter 7] policy statements . . . say nothing
about concurrence or consecutiveness. This silence leaves
intact the district court’s statutory discretion.”); see also
Gonzalez, 250 F.3d at 929 n.8 (same).
In sum, neither the negative pregnant principle nor the
rule of lenity served to deprive the district court of its
discretionary authority under § 3584(a) to impose consecutive
terms of imprisonment following revocation of concurrent
supervised release terms. See Jackson, 176 F.3d at 1176,
1178. To hold otherwise would not only undermine our prior
precedent, but would create an unwarranted circuit split. See
Kelton Arms Condo. Owners Ass’n v. Homestead Ins. Co.,
346 F.3d 1190, 1192 (9th Cir. 2003) (“[W]e decline to create
a circuit split unless there is a compelling reason to do
so. . . .”) (citation omitted).
IV. CONCLUSION
The district court acted within the discretion conferred
upon it by 18 U.S.C. § 3584(a) when it imposed consecutive
terms of imprisonment following revocation of multiple
supervised release terms. We agree with our sister circuits
that neither the negative pregnant rule nor the rule of lenity
10 UNITED STATES V. CAMPBELL
deprives the sentencing court of the discretion set forth in the
statute. The absence of a concurrent/consecutive sentencing
provision in Chapter 7 of the Guidelines results in reversion
to the statutory provision, which expressly provides that
multiple sentences may be imposed to run consecutively or
concurrently. Because the district court acted within its
discretion in imposing consecutive sentences, no plain error
occurred. The judgment of the district court is AFFIRMED.
BERZON, Circuit Judge, dubitante:
Today’s result is baffling. Roger William Campbell was
initially sentenced to concurrent terms of imprisonment and
supervised release.1 After he admitted to a single violation of
the terms of that supervised release, the district court revoked
his supervised release and sentenced him to consecutive terms
of imprisonment. The result was that Campbell’s prison
sentence was longer for the revocation than his original
sentence and could have been much longer as the majority
opinion interprets the U.S. Sentencing Guidelines. The
majority now approves that revocation sentence and the
interpretation of the Guidelines on which it was based. I
believe the imposition of consecutive sentences in this
instance is incompatible with both the purposes and the
practicalities of supervised release. But, as I explain below,
1
Campbell’s terms of supervised release were required by statute to
run concurrently. See 18 U.S.C. § 3624(e) (“The term of supervised
release commences on the day the person is released from imprisonment
and runs concurrently with any Federal, State, or local term of probation
or supervised release or parole for another offense to which the person is
subject or becomes subject during the term of supervised release.”).
UNITED STATES V. CAMPBELL 11
the fault for this troubling outcome lies principally not with
my colleagues but with the Guidelines, which are far from
lucid on this point. I therefore write specifically to encourage
the U.S. Sentencing Commission to resolve this anomaly.
I
By design, supervised release serves a unique purpose
in our criminal justice system. See Gozlon-Peretz v.
United States, 498 U.S. 395, 408 (1991); Fiona Doherty,
Indeterminate Sentencing Returns: The Invention of
Supervised Release, 88 N.Y.U. L. Rev. 958 (2013)
(chronicling the origins and purposes of supervised release).
In essence, supervised release establishes what should be a
simple bargain: After serving a prison sentence, an individual
goes free in exchange for agreeing to abide by a set of
conditions—some established by statute, others left to the
discretion of the district court. See 18 U.S.C. § 3583(d).
When an individual violates one or more conditions of his
supervised release, the district court may revoke supervised
release and impose a prison sentence, to “sanction primarily
the defendant’s breach of trust.” U.S. Sentencing Guidelines
Manual (“U.S.S.G.”) Ch. 7, pt. A(3)(b); see United States v.
Miqbel, 444 F.3d 1173, 1181–82 (9th Cir. 2006) (noting the
differences between 18 U.S.C. § 3553(a), which establishes
ten factors to be considered at sentencing, and 18 U.S.C.
§ 3583(e), which incorporates eight of those factors for
revocation sentencing).2
2
Miqbel emphasized the difference between the original sentencing
inquiry and revocation sentencing inquiry and concluded that, at a
revocation sentencing, a court “may not punish [a defendant] for the [new]
criminal conduct underlying the revocation” and “may not . . . consider a
need to promote respect for the law, based on the nature of the underlying
12 UNITED STATES V. CAMPBELL
Here, Campbell admitted to violating a single condition
of his supervised release: he failed to maintain contact with
his probation officer.3 This condition, like all twenty-five
conditions set by the district court at Campbell’s initial
sentencing, applied to each of the thirty-five concurrent terms
of supervised release imposed as a part of Campbell’s
original sentence. See 18 U.S.C. § 3624(e). Following
Campbell’s violation, the district court determined that it had
the discretion to impose consecutive revocation sentences for
each of the thirty-five terms of Campbell’s supervised
release, ultimately sentencing Campbell to twenty-five
months in prison. That sentence was a month and a day
longer than Campbell’s original prison sentence, but
290 months shorter than the court could have imposed had it
adopted the maximum sentence recommended by the
Guidelines for each of the 35 concurrent terms of supervised
release. See U.S.S.G. § 7B1.4(a).
I find it inexplicable that the district court could have
the discretion to turn Campbell’s single violation of the
conditions of his concurrent supervised release terms into
multiple, consecutive terms of confinement, potentially much,
much longer than the original term of imprisonment. The
district court stacked Campbell’s concurrent terms of
supervised release. But Campbell did not violate a term of
supervised release—he violated a single condition of
criminal offense committed,” as a court could at a sentencing hearing.
444 F.3d at 1182 (citation and internal quotation marks omitted).
3
As the majority notes, Campbell’s probation officer initially reported
him for four violations of the conditions of his supervised release, but he
admitted to, and the district court ultimately sanctioned him for, only one
of those violations.
UNITED STATES V. CAMPBELL 13
supervised release imposed for each term. That is, there was
one violation, not thirty-five. And so, although Campbell’s
violation was serious, Campbell did not breach the court’s
trust thirty-five times, once for each term the district court
revoked. He breached it once. Punishing Campbell with
consecutive revocation sentences is detached from the reality
and purpose of supervised release, which aims, in effect, to
have Campbell behave by conforming to his conditions of
supervised release—not to have him behave thirty-five times
over.
II
The problem is that the Guidelines are completely opaque
about whether they sanction the mode of calculation of the
Guidelines’ recommended sentence that the district court
used here. As the parties agree, the Guidelines do not
expressly state, one way or the other, whether a defendant can
be sentenced to consecutive terms for violating a condition of
concurrent supervision terms. See United States v. Quinones,
136 F.3d 1293, 1295 (11th Cir. 1998) (“[The Guidelines’]
policy statements, however, say nothing about concurrence or
consecutiveness. This silence leaves intact the district court’s
statutory discretion.”).
Inferring an answer from what the Guidelines do say fares
no better. On the one hand, portions of the Guidelines suggest
that revocation sentences are to be imposed per condition
violated, not “term” imposed. In discussing revocation, the
Guidelines refer to conduct that gives rise to revocation. The
Guidelines explicitly spell out that “[w]here there is more
than one violation of the conditions of supervision, or the
violation includes conduct that constitutes more than one
offense, the grade of the violation is determined by the
14 UNITED STATES V. CAMPBELL
violation having the most serious grade.” U.S.S.G. § 7B1.1(b)
(emphasis added). The Guidelines’ recommendations for
revocation sentences are then encapsulated in a chart in which
the x-axis corresponds to the defendant’s criminal history and
the y-axis to the “grade of violation” of the offense triggering
the revocation. § 7B1.4; see Appendix. Each of the three
grades of violation is defined as “conduct constituting” a
particular type of offense, § 7B1.1(a) (emphasis added);
Campbell’s violation, for example, was a Grade C violation,
defined as “conduct constituting . . . a violation of any . . .
condition of supervision.” Id.; see also § 7B1.1, cmt. n.1
(“[T]he grade of the violation is to be based on the
defendant’s actual conduct.”). There is no mention of
correlating the period of imprisonment with the number of
terms of supervised release imposed, and the repeated
references to “conduct” confirm that there is only a single
violation when there is only a single course of action that
breaches a condition of supervised release, as there was here.
On the other hand, though, the statute governing
revocation does, as we and other courts have interpreted it,
grant district courts discretion to turn concurrent terms of
supervised release into consecutive terms of imprisonment.
U.S. v. Xinidakis, 598 F.3d 1213, 1217 (9th Cir. 2010); U.S.
v. Jackson, 176 F.3d 1175 (9th Cir. 1999) (per curiam);
Quinones, 136 F.3d at 1295. When a district court imposes
“multiple terms of imprisonment,” 18 U.S.C. § 3584(a) gives
the court the discretion to run those terms concurrently or
consecutively. See Jackson, 176 F.3d at 1177–78. Jackson
and Xinidakis hold that this discretion applies to
imprisonment on account of supervised release. Xinidakis,
598 F.3d at 1215–1217; Jackson, 176 F.3d at 1177–78. The
statute, though, sets only the outer bounds for the Guidelines.
The Guidelines would certainly fall within those statutory
UNITED STATES V. CAMPBELL 15
bounds by recommending only a single sentence for a
violation of a condition of supervised release, no matter how
many concurrent terms of supervised release a defendant is
serving. Still, one would expect the Guidelines to be specific
if the intent was to recommend against consecutive terms
even though they are allowed by the statute.
Moreover, the Guidelines themselves refer frequently to
the “term” of supervised release as the unit of measurement
for revocation. See U.S.S.G. § 7B1.3(a)(2) (“Upon a finding
of a Grade C violation, the court may . . . extend the term of
probation or supervised release.”); §7B1.3(c)(2) (“Where the
minimum term of imprisonment determined under §7B1.4 . . .
is more than six months but not more than ten months, the
minimum term may be satisfied by . . . a sentence of
imprisonment . . . .”). Also, the Guidelines’ commentary
notes that “[t]he provisions for the revocation, as well as early
termination and extension, of a term of supervised release are
found in 18 U.S.C. 3583(e), (g)–(i).” §7B1.3, cmt. n.2.
Of course, a “term of supervised release” would seem, in
ordinary English, to mean the actual time period a defendant
is to be supervised. But Jackson and Xinidakis rested on the
view that a “term of supervised release” is, instead, an
abstraction—the supervised release prescription for each
underlying offense, however long the defendant is actually to
be supervised.4 The Guidelines’ use of “term” is consistent
with that understanding.
Despite this lack of clarity, I very much doubt, in light of
supervised release’s role in our criminal justice system, that
4
I note that I find that abstract understanding highly debatable in the
context of mandatory concurrent supervised release sentences.
16 UNITED STATES V. CAMPBELL
the Sentencing Commission meant to recommend revocation
sentences measured by the number of “terms of supervised
release” rather than by the violations of the uniform
conditions of supervised release and the nature of the
underlying offense. The Sentencing Commission, which
promulgates the Sentencing Guidelines, has underscored that
“it views the guideline-writing process as evolutionary.”
Sentencing Guidelines, Ch. 1, pt. A; Ch. 7 pt. A. Yet, I have
seen no indication that the Commission has confronted this
anomaly. On this matter, the time to evolve is now.
UNITED STATES V. CAMPBELL 17
APPENDIX: Sentencing Guidelines, §7B1.4