United States v. Steven Campbell ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-1023
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Steven C. Campbell
lllllllllllllllllllll Defendant - Appellant
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No. 13-1069
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
John Thomas Bailey
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: September 27, 2013
Filed: August 22, 2014
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Before WOLLMAN, SMITH, and KELLY, Circuit Judges.
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SMITH, Circuit Judge.
Steven C. Campbell and John Thomas Bailey each pleaded guilty to conspiracy
to possess with the intent to distribute anabolic steroids and conspiracy to commit
money laundering. On appeal, both defendants challenge the district court's1
application of U.S.S.G. § 2S1.1(a)(2) when calculating their offense level. Bailey also
contends that the district court miscalculated his criminal history score. We affirm.
I. Background
Following an extensive investigation, the government indicted Campbell and
Bailey with one count of conspiracy to possess anabolic steroids with intent to
distribute, in violation of 21 U.S.C. §§ 841(a)(1), 841(b) and 846 ("Count 1"), and
one count of conspiracy to commit money laundering, in violation of 18 U.S.C.
§ 1956(h) ("Count 2"). They each pleaded guilty to both charges.
The parties stipulated several facts pertaining to these conspiracies in their plea
agreements. The parties agreed that the amount of anabolic steroids attributable to the
defendants could not be calculated precisely, but it was somewhere between 1 and 2.5
kilograms. The parties also agreed that the amount of money involved in the
conspiracy was no less than $400,455. Furthermore, they agreed that Campbell and
Bailey entered into the conspiracy beginning in 2007.
1
The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
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Most importantly, the parties affirmatively agreed in their plea agreements that
U.S.S.G. § 2S1.1(a)(2) should apply when calculating the defendants' offense levels.
The plea agreements stated that "the parties also agree that the U.S. Sentencing
Guidelines Total Offense Level analysis agreed to by the parties herein is the result
of negotiation and led, in part, to the guilty plea." They further provided that "the
parties recommend that the base offense level is 22 as found in Section 2S1.1(a)(2)."
(Emphasis added.) The district court found that each defendant knowingly and
voluntarily entered into these plea agreements after reviewing their contents.
Both of the defendants' presentence reports (PSRs) applied § 2S1.1(a)(2) in
calculating their offense levels.2 The PSRs noted that the offense level for the
underlying offense was impossible or impracticable to determine, so § 2S1.1(a)(2)
applied instead of § 2S1.1(a)(1). Campbell's PSR advised an offense level of 27;
coupled with a criminal history category of IV, Campbell's Guidelines range was
100–125 months' imprisonment. Campbell did not object to the findings of fact in his
PSR or to the calculation of his offense level.
Bailey's PSR calculated his offense level to be 27 as well. It also calculated 14
criminal history points, placing Bailey in category VI. Bailey's PSR awarded one
point each to two 1998 misdemeanor convictions. Furthermore, two points were
added because Bailey was on supervised release at the time he committed the present
offense. See U.S.S.G. § 4A1.1(d). Therefore, Bailey's Guidelines range was 130–162
months' imprisonment.
The district court adopted the PSRs' factual findings and the PSRs'
recommended application of § 2S1.1(a)(2) after neither party objected on these
2
The PSRs calculated the defendants' offense levels using the money-
laundering provisions of the Sentencing Guidelines because Count 2 was "the most
serious" Count in that it yielded a higher base offense level than Count 1. See
U.S.S.G. § 3D1.3(a).
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grounds. The district court sentenced Campbell to 92 months' imprisonment on both
counts, running concurrently, which was below his Guidelines range. The district
court sentenced Bailey to 120 months' imprisonment on Count 1 and 125 months'
imprisonment on Count 2, running concurrently. Bailey's sentence was also below the
Guidelines range.
II. Discussion
Both Campbell and Bailey argue on appeal that the district court applied
§ 2S1.1(a)(2) but should have applied § 2S1.1(a)(1) instead in calculating their
offense levels. Bailey also contends that the district court miscalculated his criminal
history score.
A. Application of U.S.S.G. § 2S1.1(a)(2)
Both defendants argue that the district court erroneously applied § 2S1.1(a)(2)
rather than § 2S1.1(a)(1) when calculating their offense levels, despite the parties'
stipulation in their plea agreements that the district court should apply § 2S1.1(a)(2).
Section 2S1.1 provides, in pertinent part:
§ 2S1.1 Laundering of Monetary Instruments; Engaging in Monetary
Transactions in Property Derived from Unlawful Activity
(a) Base Offense Level:
(1) The offense level for the underlying offense from which the
laundered funds were derived, if (A) the defendant committed the
underlying offense (or would be accountable for the underlying offense
under subsection (a)(1)(A) of § 1B1.3 (Relevant Conduct)); and (B) the
offense level for that offense can be determined; or
(2) 8 plus the number of offense levels from the table in § 2B1.1 (Theft,
Property Destruction, and Fraud) corresponding to the value of the
laundered funds, otherwise.
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(b) Specific Offense Characteristics
(1) if (A) subsection (a)(2) applies; and (B) the defendant knew or
believed that any of the laundered funds were the proceeds of, or were
intended to promote (i) an offense involving the manufacture,
importation, or distribution of a controlled substance or a listed
chemical; (ii) a crime of violence; or (iii) an offense involving firearms,
explosives, national security, or the sexual exploitation of a minor,
increase by 6 levels.
In 2001, the Sentencing Commission amended the money-laundering
sentencing guidelines "to tie offense levels for money laundering more closely to the
underlying conduct that was the source of the criminally derived funds." United
States v. Blackmon, 557 F.3d 113, 119 (3d Cir. 2009) (quotation, alteration, and
citation omitted). To accomplish this goal, the Guidelines distinguish between direct
money launderers in § 2S1.1(a)(1) and third-party launderers in § 2S1.1(a)(2). Id. A
direct launderer commits the crime that produces the illicit funds. Id. A third-party
launderer has no involvement in the underlying offense but only launders money that
the underlying offense generated. Id. A party should be sentenced under § 2S1.1(a)(2)
only when the underlying offense level cannot be determined, in which case the
calculation is determined by the value of the laundered funds. United States v. Hanna,
661 F.3d 271, 289 (6th Cir. 2011).
Here, the defendants argue that they should be considered direct launderers
under § 2S1.1(a)(1) because they committed the underlying offense and because the
base offense level for the underlying offense can be determined. According to the
defendants, the parties stipulated to both elements in their plea agreements, pleading
guilty to the underlying offense of Count 1 and calculation of Count 1's base offense
level. The PSRs instead applied § 2S1.1(a)(2) and used the amount of money
stipulated to be involved in the conspiracy ($400,455) to calculate the offense level
pursuant to § 2S1.1(a)(2) and the table in U.S.S.G. § 2B1.1. Thus, the defendants
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contend that the PSRs inconsistently accepted the amount laundered in the plea
agreement but rejected the coinciding offense level calculation.
District courts commit procedural error by miscalculating the appropriate
sentencing Guidelines range. Gall v. United States, 552 U.S. 38, 51 (2007). We
generally review procedural errors for abuse of discretion. Id. However, where a party
forfeits a merits review by failing to object, we may, nonetheless, conduct plain error
review. For instance, a defendant who does not object to the district court's
miscalculation of his Guidelines range may receive plain error review. See Fed. R.
Crim. P. 52(b); United States v. Townsend, 618 F.3d 915, 918 (8th Cir. 2010).
Where, however, a defendant knowingly and voluntarily waives a right, any
error is unreviewable on appeal. United States v. Wisecarver, 598 F.3d 982, 988 (8th
Cir. 2010). In other words, "[a]n erroneous ruling generally does not constitute
reversible error when it is invited by the same party who seeks on appeal to have the
ruling overturned." Roth v. Homestake Mining Co. of Cal., 74 F.3d 843, 845 (8th Cir.
1996) (citation omitted). Defendants need not propose or independently develop the
course of action that they ask the court to pursue, for "[t]he doctrine of invited error
applies when the trial court announces its intention to embark on a specific course of
action and defense counsel specifically approves of that course of action." Matthew
v. Unum Life Ins. Co. of Am., 639 F.3d 857, 868 (8th Cir. 2011) (quoting United
States v. Jewell, 614 F.3d 911, 920 (8th Cir. 2010); United States v. Mahler, 141 F.3d
811, 815 (8th Cir. 1998)).
We have also stated that the defendant "cannot complain that the district court
gave him exactly what his lawyer asked." United States v. Thompson, 289 F.3d 524,
526 (8th Cir. 2002). We explained the relevant facts in Thompson:
Thompson's lawyer initially raised eight objections to the PSR,
including objections to the three-level enhancement, the drug quantity
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determination, and the use of the two felony convictions mentioned
above. At the beginning of the sentencing hearing, however,
Thompson's lawyer withdrew all eight objections, including the three
objections just described. In withdrawing his objections, Thompson's
lawyer told the district court they were "more in the form of argument
than . . . a dispute over the facts." The district court asked Thompson
whether he opposed his lawyer's withdrawal of the eight objections, and
Thompson responded, "No, sir." Thompson's lawyer then acquiesced in
the guideline range recommended by the PSR and asked the district
court "to consider the low end of the range of punishment."
Id. We determined that we would not review Thompson's subsequent challenge to his
sentence and the PSR because "[t]he plain error standard only applies when a
defendant inadvertently fails to raise an objection in the district court." Id. In
Thompson, the defendant did not propose the three-level enhancement, drug quantity,
and use of the felony convictions; however, we nonetheless declined to review his
sentence for plain error because he agreed that the court could proceed along his
suggested course. Whether couched as invited error or more generally as a waiver, the
result is the same—this court will not conduct plain-error review. See United States
v. Mariano, 729 F.3d 874, 880–81 (8th Cir. 2013) (recognizing that an invited error
can constitute a waiver that precludes appellate review).
Here, Campbell and Bailey invited any procedural error in the calculation of
their offense levels by signing plea agreements that recommended that the district
court apply § 2S1.1(a)(2). Their plea agreements explained that "the parties also agree
that the U.S. Sentencing Guidelines Total Offense Level analysis agreed to by the
parties herein is the result of negotiation and led, in part, to the guilty plea" and that
"the parties recommend that the base offense level is 22 as found in Section
2S1.1(a)(2)." Campbell and Bailey did much more than "inadvertently fail[ ] to raise
an objection in the district court," see Thompson, 289 F.3d at 526; rather, they
prompted the district court to "embark on a specific course of action" that "defense
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counsel specifically approve[d]." See Matthew, 639 F.3d at 868.3 Other circuits have
declined plain error review where the defendant pleaded guilty, did not object to the
PSR on the appropriate grounds, and asked the court to proceed with the agreed-upon
sentencing calculation. See United States v. Mancera-Perez, 505 F.3d 1054, 1057
(10th Cir. 2007) ("Because Mancera-Perez did not argue for a shorter sentence in
front of the district court, and indeed conceded the appropriateness of his forty-six
month sentence, we believe this argument seeks to assert invited error and is
waived"); United States v. Love, 449 F.3d 1154, 1157 (11th Cir. 2006) ("Love
induced or invited the district court to impose a sentence that included a term of
supervised release. In his plea agreement and again at the plea colloquy, he expressly
acknowledged the court could impose a term of supervised release of up to five
years."). Thus, we decline to review whether the district court erroneously calculated
the defendants' offense levels using § 2S1.1(a)(2).
B. Bailey's Criminal History Score
Bailey's PSR assigned him 14 criminal history points, resulting in a criminal
history category of VI. Bailey contends that the district court plainly erred in adopting
the PSR's recommendation because he should not have received one point for each
of two misdemeanors that he committed in 1998. Bailey claims on appeal that he did
not meet Campbell until 2009, meaning that he committed these misdemeanors more
than ten years before engaging in this conspiracy. He also contends that he should not
have received two criminal history points for engaging in the conspiracy while on
supervised release. Bailey argues that his supervised release had expired in 2009 by
the time that he met Campbell. Bailey, arguing for plain error review, acknowledges
that he did not object on these grounds before the district court. See United States v.
Stokes, 750 F.3d 767, 771 (8th Cir. 2014). "To establish plain error, [a defendant]
3
The record in this case does not reflect which party drafted the plea
agreements that Campbell and Bailey signed; however, we determine that the
authorship of the plea agreements is of no consequence because Campbell and Bailey
agreed to the plea agreements and presented them to the district court.
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must prove (1) there was error, (2) the error was plain, and (3) the error affected his
substantial rights." Id. (quotation and citations omitted).
U.S.S.G. § 4A1.1(c) provides that one point is added to a criminal history score
for prior sentences where the defendant was imprisoned for less than 60 days.
Application Note 3 to § 4A1.1 explains that "[a] sentence imposed more than ten
years prior to the defendant's commencement of the instant offense is not counted."
Additionally, § 4A1.1(d) requires an additional two criminal history points if the
defendant committed the offense while on supervised release.
We reject Bailey's arguments. Bailey stipulated to the following in his plea
agreement: "Defendant BAILEY further admits that he and co-defendant Steven
CAMPBELL distributed steroids, HGH and/or other controlled substances to others
known and unknown throughout the Eastern District of Missouri at various times
during the time period of June 2007 and June 2012." Bailey never objected to this fact
before the district court, so the district court properly adopted that fact as true. See
United States v. Pepper, 747 F.3d 520, 523 (8th Cir. 2014) ("[U]nless a defendant
objects to a specific factual allegation contained in the PSR, the court may accept that
fact as true for sentencing purposes." (quotation and citations omitted)). Thus, the
district court properly concluded that Bailey participated in the conspiracy beginning
in 2007. Consequently, he properly received criminal history points for his 1998
misdemeanor convictions and for commencing the current offense while on
supervised release.4
III. Conclusion
We affirm the judgment of the district court.
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4
Bailey states in his brief that, if we were to remand for resentencing, he would
object to his status as a career offender. Because we do not remand for resentencing,
and because his career offender status does not affect his Guidelines calculation, we
decline to address whether Bailey is a career offender.
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