United States v. Campbell

Opinions of the United
2002 Decisions States Court of Appeals
for the Third Circuit
7-2-2002
USA v. Campbell
Precedential or Non-Precedential: Precedential
Docket No. 00-1698
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PRECEDENTIAL
Filed July 2, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-1698
UNITED STATES OF AMERICA
v.
CURTIS LEROY CAMPBELL,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Judge: Donald E. Ziegler
(D.C. Crim. No. 00-00001-1)
Argued January 30, 2001
Before: SLOVITER, FUENTES and ALDISERT,
Circuit Judges.
(Filed July 2, 2002)
Shelly Stark
Lisa B. Freeland (ARGUED)
Office of the Federal Public Defender
Pittsburgh, Pennsylvania 15222
Attorneys for Appellant
Harry Litman
Bonnie R. Schlueter (ARGUED)
United States Attorneys’ Office
Pittsburgh, Pennsylvania 15219
Attorneys for Appellee
OPINION OF THE COURT
FUENTES, Circuit Judge:
Curtis Leroy Campbell was indicted for distributing in
excess of 50 grams of cocaine base ("crack") in violation of
21 U.S.C. SS 841(a)(1) and (b)(1)(A)(iii). At trial, the District
Court instructed the jury as to the drug offense but did not
submit the issue of drug quantity to the jury as an element
to be proven beyond a reasonable doubt. After a guilty
verdict, the court sentenced Campbell to 22 years of
imprisonment and 5 years of supervised release. He
appeals, contending that in light of Apprendi v. New Jersey,
530 U.S. 466, 120 S. Ct. 2348 (2000), his sentence was
unconstitutional because the issue of drug quantity, which
resulted in a sentence beyond the statutory maximum
authorized by the jury’s verdict, had not been submitted to
the jury and proven beyond a reasonable doubt. We
conclude that, because the evidence at trial supported a
conviction under 21 U.S.C. S 841(b)(1)(B)(iii), which provides
for a 5 to 40 year sentence for distribution of at least 5
grams of cocaine base, Campbell’s sentence, although in
violation of Apprendi, did not constitute plain error. We will
therefore affirm.
I.
In November 1997, Rick Szurlej, a local officer who
served as a Special Agent for the United States Drug
Enforcement Agency ("DEA"), purchased a small amount of
crack cocaine from Kenneth Cottingham. After his arrest,
Cottingham agreed to cooperate by assisting in the
investigation of other drug activities in the West End and
McKees Rocks areas of Pittsburgh, Pennsylvania. During a
debriefing, Cottingham named Campbell as one of his drug
sources.
On January 11, 1999, as part of the DEA’s ongoing
investigation and under Szurlej’s supervision, Cottingham
arranged a controlled purchase from Campbell. By
telephone, Cottingham scheduled a meeting with Campbell
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to purchase two ounces of crack cocaine for $2,000.
Approximately a half hour later that day, and under DEA
surveillance, Cottingham entered Campbell’s vehicle. Once
inside, Cottingham handed Campbell $2,000, and Campbell
supplied crack cocaine in return. After Campbell dropped
Cottingham off, the DEA seized the crack cocaine, which
was weighed and delivered to the DEA laboratory in New
York.
At trial, the Government first called Cottingham, who
testified regarding the crack cocaine he purchased from
Campbell. The next witness was Szurlej, who testified that
he outfitted Cottingham with a digital recorder, picked him
up after the controlled purchase, and promptly seized the
drugs.
During Szurlej’s direct testimony, the prosecutor stated,
"I believe, Your Honor, we have a stipulation as to the
chemical analysis." Counsel then conferred off the record
and, when questioning resumed, Szurlej testified that the
chemical analysis determined that the drugs seized were
cocaine base, commonly known as crack cocaine. When
questioned about the weight, Szurlej responded that it was
53.2 grams with a purity level of 41%. After Szurlej, the
DEA forensic chemist, Chris Anne Eleftheriou, testified that
she performed the chemical analysis, which revealed that
the drugs weighed 53.2 grams and had a cocaine base
purity of 41 percent. She testified that the remaining 59
percent of the substance contained unidentified cutting
agents, processing impurities, and other by-products.
Campbell’s counsel asked her whether the substance might
have absorbed atmospheric moisture and thereby gained
weight. Eleftheriou thought this possibility was unlikely.
Three other DEA agents, Richard Nolan, Daniel Snyder,
and Dominick Braccio, also testified about their
surveillance of the controlled purchase operation and
identified Campbell as present at that operation. Before his
cross-examination of Braccio, Campbell’s trial counsel
asked the court about "the effect of the stipulation that the
sample was cocaine." He said that "a little bit of an issue
came up as to the weight, and I’m not sure to what extent
I am bound by the stipulation I gave and to what extent I
can comment on whether we have a doubt here as to
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whether we’re at 50 grams or not." Campbell’s attorney
sought guidance about whether, in light of the stipulation,
he remained free to contest drug quantity, and specifically
whether the evidence showed an amount equal to or
exceeding 50 grams. During the ensuing colloquy, the
prosecutor took the position that drug quantity was not an
element of the offense and therefore was not subject to a
jury determination. The prosecutor stated that the jury did
not "have to find as an element that it’s over 50 grams.
That’s not an issue for them to decide." The court agreed,
stating that "[i]t is not an issue to be argued at this time."
After the conclusion of testimony and closing arguments,
the court instructed the jury that, in order to convict
Campbell, it must find, beyond a reasonable doubt, that he
"acted knowingly and willfully" and that he"possessed with
the intent to distribute and/or distributed cocaine base."
The District Court did not submit the drug quantity issue
to the jury. Instead, the court told the jury that the seized
drugs were crack cocaine, which were "analyzed and found
to be 41 per cent pure and weighed 53.2 grams."
Thereafter, the jury found Campbell guilty.
The Presentence Investigation Report ("PSR") stated that
Campbell had dealt with over 1.5 kilograms of cocaine,
which required an offense level of 38. The PSR also
assigned Campbell a criminal history category of II based,
in part, upon information provided by confidential
informants who indicated that some of Campbell’s drug
dealing occurred while he was on probation. Consequently,
Campbell’s guideline sentencing range was 262 to 327
months.
During a sentencing hearing in May 2000, the District
Court questioned the Government concerning the amount
of controlled substance attributable to Campbell. The
Government explained that the amount purchased on the
date alleged in the indictment was 53.2 grams. Further, the
Government stated that 1.5 kilograms of crack cocaine
could be attributed to Campbell based upon his own pre-
arrest statements to DEA agents and a "conservative
approach in doing the math." The court then admitted
Campbell’s statements into the record. The Government
also emphasized that Campbell had been involved with
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about 500 grams and 1.5 kilograms of crack cocaine in
relation to two different individuals, and that confidential
informants had confirmed that Campbell had dealt in those
quantities of drugs. Finally, the Government pointed to a
tape recording showing that Campbell had been prepared to
deal in 1 kilogram of crack cocaine.
Campbell’s counsel stated that he had objections to the
PSR. The court declared a 10-minute recess to give him an
opportunity to confer with Campbell concerning those
objections. After the recess, defense counsel stated that "my
client [has] advised me that he specifically contests
paragraphs 10 through 19 inclusive," which included "each
and every one of the paragraphs setting forth allegations of
relevant conduct." Campbell also "contest[ed] the allegation
that he made the alleged confession to the agents."
However, counsel provided no further detail concerning the
grounds for the objections. Notably, Campbell did not
object to paragraph 9 of the PSR, which implicated him in
the sale of 53.2 grams of cocaine base to Cottingham for
$2,000.
The court proceeded to adopt the PSR findings, stating
that "we find that the clear weight of the credible evidence
of record supports the finding of the probation officer [in
the PSR], especially the admissions of Mr. Campbell to the
. . . drug enforcement task force member." The court also
adopted the PSR guideline findings regarding offense level
and criminal history category. Consequently, the court
sentenced Campbell to 22 years of imprisonment, or 264
months.
Campbell filed a timely appeal to this Court. We have
jurisdiction under 18 U.S.C. S 3742 and 28 U.S.C. S 1291.
II.
Campbell contends that, in light of Apprendi, his case
should be remanded for resentencing. He asserts that,
because the drug quantity he sold to Cottingham was not
submitted to the jury and proven beyond a reasonable
doubt, a sentence in excess of the 20 years authorized by
21 U.S.C. S 841(b)(1)(C), which applies in the absence of a
specific drug quantity, is erroneous.
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A.
The Government initially argues that Campbell waived
the Apprendi issue because he had stipulated that the
confiscated drugs were 53.2 grams of crack cocaine, and
therefore, he can no longer contest the drug quantity issue.
Recognizing the importance of this issue, we asked counsel
to direct us to that portion of the record where the
stipulation as to cocaine base quantity is set forth. In its
response, the Government wrote that "[t]here was no
written stipulation between the parties," but added that,
according to its trial counsel, there was an off-the-record
discussion agreeing to stipulate to the weight and type of
drug.1 Campbell’s appellate counsel responded that the
Government’s representation was incorrect. She stated that
Campbell’s trial counsel advised her that "he does not
believe he agreed to stipulate that the drugs weighed more
than 50 grams" because such a stipulation would not have
been in Campbell’s best interest.2
Under these circumstances, we cannot conclude that
there was a stipulation on the drug quantity attributable to
Campbell. Certainly, the Government did not place a
stipulation on the record. Indeed, its questioning of
witnesses regarding the weight of the drugs suggests that it
believed drug quantity still to be at issue. Further,
Campbell’s attorney expressly challenged the Government’s
witnesses at trial regarding drug quantity and asked
permission from the District Court to argue to the jury that
reasonable doubt existed on this issue. The court, however,
relying on our then-controlling precedent,3 prevented him
from doing so. On this record, Campbell did not
intentionally relinquish or abandon a known right. See
United States v. Olano, 507 U.S. 725, 733 (1993).
_________________________________________________________________
1. Letter from Bonnie R. Schlueter, Assistant U.S. Attorney for the
Western District of Pennsylvania, to Marcia M. Waldron, Clerk of the
Court, 12/14/00, at 1.
2. Letter from Lisa B. Freeland, Assistant Federal Public Defender, to
Marcia M. Waldron, Clerk of the Court, 12/15/00, at 2.
3. Before Apprendi, the quantity of drugs in a S 841 conviction was
merely a sentencing factor to be determined by the court, not an element
of the offense subject to a jury finding. See United States v. Vazquez, No.
99-3845, 2001 WL 1188250, at *3 (3d Cir. Oct. 9, 2001) (en banc).
6
B.
Campbell argues that, because the District Court did not
submit drug quantity to the jury to be proven beyond a
reasonable doubt, the jury merely found that he had
distributed, or possessed with the intent to distribute,
cocaine base. He submits that the only penalty authorized
by the jury’s verdict, therefore, is the one set forth in the
only penalty provision of S 841 that contains no reference to
drug quantity, 21 U.S.C. S 841(b)(1)(C). That section
authorizes a maximum sentence of no more than 20 years
imprisonment. Campbell maintains that, because the 22-
year sentence imposed upon him exceeds the statutory
maximum by two years but was not based upon a jury
finding as to drug quantity, his sentence must be vacated
and remanded for a new sentencing hearing.
In Apprendi, the Supreme Court held that"[o]ther than
the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond
a reasonable doubt." 530 U.S. at 490. The Court further
stated that it " ‘is unconstitutional for a legislature to
remove from the jury the assessment of facts that increase
the prescribed range of penalties to which a criminal
defendant is exposed. It is equally clear that such facts
must be established by proof beyond a reasonable doubt.’ "
Id. (quoting Jones v. United States, 526 U.S. 227, 252-53
(1999) (Stevens, J., concurring)). Under this regime, the
"prescribed statutory maximum" is the punishment that the
defendant faces under the facts found by the jury. See id.
at 482-83, 490; United States v. Nordby, 225 F.3d 1053,
1059 (9th Cir. 2000).
Here, the District Court did not submit drug quantity to
the jury to be proven beyond a reasonable doubt. Under
these circumstances, the only penalty authorized by the
jury’s guilty verdict is the one set forth in 21 U.S.C.
S 841(b)(1)(C), which (with one exception not relevant here)
criminalizes conduct involving cocaine base without
reference to drug quantity. As the Tenth Circuit has stated,
"[a] district court may not impose a sentence in excess of
the maximum set forth in 21 U.S.C. S 841(b)(1)(C) unless
the benchmark quantity of cocaine base for an enhanced
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penalty is alleged in the indictment in addition to being
submitted to the jury and proven beyond a reasonable
doubt." United States v. Jones, 235 F.3d 1231, 1236 (10th
Cir. 2000); see also United States v. Vazquez , No. 99-3845,
2001 WL 1188250, *3 (3d Cir. Oct. 9, 2001) (en banc).
Under this "catch-all" or "default" provision, the maximum
penalty for a defendant without a prior felony drug
conviction is 20 years. See Vazquez, 2001 WL 1188250, at
*3. Because Campbell received a sentence in excess of the
maximum authorized penalty based upon the District
Court’s finding of drug quantity, which was made under the
less demanding preponderance of the evidence standard,
the District Court violated the constitutional rule set forth
in Apprendi.
C.
Both parties agree that, since Campbell did not object to
the District Court’s failure to submit the drug quantity
issue to the jury, we should evaluate this constitutional
violation under the plain error standard of Fed. R. Crim. P.
52(b). See, e.g., Nordby, 225 F.3d at 1060. Under the plain
error standard, "before an appellate court can correct an
error not raised at trial, there must be (1) error, (2) that is
plain, and (3) that affect[s] substantial rights. If all three
conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error
seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings." Johnson v. United
States, 520 U.S. 461, 466-67 (1997) (internal quotations
and citations omitted); accord Olano, 507 U.S. at 732-36.
The Government concedes that if its waiver argument is
unsuccessful, then for purposes of Rule 52(b) an error
occurred that was plain. For the reasons explained above,
we reject the Government’s waiver argument and agree that
Campbell has satisfied the first two plain error factors.
The more difficult question relates to the third factor --
the substantial rights inquiry. With respect to that factor,
we rely on Vazquez, where we held that a defendant, whose
sentence violated Apprendi because drug quantity was not
submitted for a jury determination, cannot satisfy the
8
substantial rights prong of the plain error test if the
evidence conclusively establishes a drug quantity adequate
to support the erroneous sentence. See Vazquez , 2001 WL
1188250, at *8. Under this standard, Campbell cannot
show that the Apprendi violation in his case affected his
substantial rights. The evidence at trial established
indisputably, and certainly beyond a reasonable doubt, that
Campbell distributed in excess of 5 grams of cocaine base.
For instance, Cottingham testified that Campbell sold him
crack cocaine in a controlled purchase. DEA Special Agent
Szurlej confirmed that he had worked with Cottingham to
arrange this controlled purchase, which occurred under his
surveillance. Three other DEA agents, Nolan, Snyder, and
Braccio, also testified about their surveillance of
Cottingham’s controlled purchase from Campbell. Szurlej
testified that, after leaving Campbell’s vehicle, Cottingham
was immediately picked up and the drugs he purchased
from Campbell for $2,000 were seized. DEA forensic
chemist Eleftheriou testified that she had performed the
chemical analysis, which showed that the drugs were
cocaine base and weighed 53.2 grams. Szurlej further
testified that the drugs were in the form of crack cocaine.
Though Campbell’s attorney sought to establish doubt as to
whether the crack cocaine equaled or exceeded 50 grams,
there was no dispute that the crack cocaine weighed at
least 5 grams.
Distribution of 5 or more, but less than 50, grams of
cocaine base constitutes a violation of 21 U.S.C.
S 841(b)(1)(B)(iii), which carries a statutory maximum
penalty of 40 years. Because the indisputable facts
established that Campbell sold more than 5 grams of
cocaine base, we rely upon the statutory maximum in that
section, which encompasses the 22 years he actually
received, to conclude that Campbell’s substantial rights
were not affected. See id. Further, Campbell’s sentence
would not change because the 1.5 kilograms of crack
cocaine that the District Court attributed to him under the
sentencing guidelines’ relevant conduct provision would
continue to apply.4 See id. The result is that Campbell
_________________________________________________________________
4. For a more detailed analysis of the relevant conduct determination,
see infra Part III.C.
9
would continue to face the same guideline sentencing range
of 262 to 327 months that authorized the 264 month (22
year) sentence imposed.
Even if Campbell could satisfy the third plain error
factor, the Apprendi error did not seriously affect the
fairness, integrity, or public reputation of judicial
proceedings. On this point, we again rely on Vazquez,
where we held that the defendant did not satisfy the fourth
plain error factor, even though his sentence violated
Apprendi because drug quantity was not submitted to the
jury, where the evidence overwhelmingly demonstrated that
he had been involved with a drug quantity sufficient to
support his erroneous sentence. See id. at *10. We find
further support in the recently decided Supreme Court case
of United States v. Cotton, 122 S.Ct. 1781 (2002), in which
the Court held that the omission from a federal indictment
of drug quantity, a fact that enhanced the defendants’
statutory maximum sentence, did not seriously affect the
fairness, integrity, or public reputation of judicial
proceedings where the evidence of the drug quantity was
"overwhelming" and "essentially uncontroverted." Id. at
1786.
In this case, we think it clear that the evidence we recited
above, in the context of the third plain error factor,
constitutes "overwhelming" and "essentially uncontroverted"
evidence that Campbell distributed in excess of 5 grams of
cocaine base. Accordingly, we hold that, while Campbell’s
sentence violated Apprendi, the error did not affect his
substantial rights or the fairness, integrity, or public
reputation of judicial proceedings, and, thus, we will
uphold his 22-year sentence.
III.
Campbell also argues that the District Court committed
several errors at sentencing when considering his relevant
conduct. He asserts that each of these alleged errors greatly
affected the length of his prison sentence and therefore
provide an independent basis for vacating his sentence. We
dispose of these alleged errors in turn.
10
A.
Campbell contends that the District Court violated Fed.
R. Crim. P. 32(c)(1) by failing to resolve his objections to the
PSR’s findings. Rule 32(c)(1) requires that, with respect to
each disputed matter, the court "must make either a
finding on the allegation or a determination that no finding
is necessary because the controverted matter will not be
taken into account in, or will not affect, sentencing."
Regarding this requirement, we have previously stated that
"[a] finding on a disputed fact or a disclaimer of reliance
upon a disputed fact must be expressly made." United
States v. Electrodyne Systems Corp., 147 F.3d 250, 255 (3d
Cir. 1998).
At the sentencing hearing, Campbell’s counsel informed
the District Court that his client contested the factual
findings of the PSR. The court responded, "That is not going
to be enough. Out of fairness to the government, the
government has to know the specific challenges of the
defendant with regard to the factual assertions." After
conferring with his client, counsel stated that Campbell
specifically objected to paragraphs 10-19 of the PSR. These
paragraphs described Campbell’s relevant conduct to the
offense, based on information obtained from government
informants as well as from statements Campbell made to
law enforcement officials. The court acknowledged these
objections, but held that "the clear weight of the credible
evidence of record supports the finding of the probation
officer, especially the admissions of Mr. Campbell to the . . .
[DEA]."
Campbell has not shown a violation of Rule 32. That Rule
provides that a party must communicate in writing to the
probation officer "any objections to any material
information . . . contained in or omitted from the
presentence report" within 14 days after receiving the PSR.
Fed. R. Crim. P. 32(b)(6)(B). Here, Campbell first raised his
objections to the PSR at the sentencing hearing, but did not
explain why he chose to wait until the hearing to do so. Of
course, the court may allow new objections to be raised at
any time before imposing sentence if good cause is shown.
See Fed. R. Crim. P. 32(b)(6)(D). However, even assuming
that Campbell properly raised his objections, the District
11
Court fulfilled its obligations under Rule 32(c)(1) by stating
that the PSR’s findings were supported by a preponderance
of the evidence.
B.
Campbell next argues that the District Court violated his
due process rights by considering statements he made to
DEA agents without first establishing the reliability of those
statements. Generally, the Federal Rules of Evidence do not
apply in sentencing proceedings, as even hearsay may be
used by the court when considering relevant conduct. See
United States v. Paulino, 996 F.2d 1541, 1547-48 (3d Cir.
1993).5 However, the Sentencing Guidelines provide that all
information used as a basis for sentencing must have
"sufficient indicia of reliability to support its probable
accuracy." U.S. Sentencing Guidelines Manual S 6A1.3(a)
(1998) [hereinafter U.S.S.G.]. We have stated that this
standard "should be applied rigorously." United States v.
Miele, 989 F.3d 659, 664 (3d Cir. 1993).
In the case at hand, Campbell did not provide any
detailed reasons to support his claim that the PSR’s
findings were unreliable, even after the court granted a 10-
minute recess to allow defense counsel to confer with
Campbell regarding his objections to the PSR. As a result,
there was no evidence contradicting the PSR’s findings that
would have called into question the reliability of Campbell’s
prior statements. Thus, this case is distinguishable from
Miele, where we held that there were no sufficient indicia of
reliability for the district court to have based its finding of
drug quantity on the testimony of an informant, who was a
known drug addict, but only after it was clear that he had
given inconsistent statements on the amounts of drugs
involved in a conspiracy. See 989 F.2d at 662-65.
Campbell contends that once he objected to the PSR’s
findings, the District Court should have considered whether
the statements he made to the DEA were voluntary and
reliable. In other words, Campbell argues that his general
_________________________________________________________________
5. We note one exception; the rules with respect to privileges are, in fact,
applicable to sentencing proceedings. Fed.R.Evid. 1101(d)(3).
12
objection to the PSR required the court to make a
determination on the statements’ voluntariness and
reliability before making any findings regarding sentencing
based on the statements. The Government responds that
the objection Campbell made at the sentencing hearing was
that he had never made the statements. Thus, the
Government argues, the District Court was not required to
consider, on its own initiative, the question of whether the
statements were voluntary.
In the absence of any evidence that casts doubt on the
statements’ voluntariness or reliability, we agree that the
court did not need to make a further inquiry into those
factors to fulfill U.S.S.G. S 6A1.3. The cases that Campbell
cites in his reply brief, which required a hearing on
voluntariness, are not apt here because they did not
concern the use of information at the sentencing phase.
Therefore, we conclude that the District Court did not
violate Campbell’s due process rights when considering
Campbell’s statements at sentencing.
C.
Finally, Campbell submits that the District Court clearly
erred in determining that 1.5 kilograms of crack cocaine
could be attributed to him and considered as part of his
relevant conduct. The Sentencing Guidelines provide that
"[w]here there is no drug seizure or the amount seized does
not reflect the scale of the offense, the court shall
approximate the quantity of the controlled substance. In
making this determination, the court may consider, for
example, . . . similar transactions in controlled substances
by the defendant." U.S.S.G. S 2D1.1, cmt. n.12. Thus, we
have recognized that "in calculating the amount of drugs
involved in a particular operation, a degree of estimation is
sometimes necessary." Paulino, 996 F.2d at 1545.
Nevertheless, the court "must carefully scrutinize the
government’s proof to ensure that its estimates are
supported by a preponderance of the evidence." Id.At Campbell’s sentencing, the court questioned the
Government’s lawyer on its calculation. The Government
described that its calculation was based on the statements
13
Campbell had made. Specifically, Campbell had stated that
he regularly obtained crack from Chris Motley, a/k/a"C
Mott," in quarter ounce, half ounce, and one ounce
amounts from approximately January 1992 to 1995. The
largest amount Campbell received from Motley was four
and one half ounces. Using "a conservative approach in
doing the math," the Government stated that Campbell’s
transactions with Motley involved approximately 1.5
kilograms of crack cocaine. In addition, Campbell had
stated that he dealt with Darrel Boxley, a/k/a "Biddy," in
one, two, or three ounces of crack cocaine every 10 days for
a period of a year. Again using a conservative calculation,
the Government stated that this would have totaled around
half a kilogram. Thus, the Government proffered that
Campbell dealt with at least 1.5 kilograms of crack cocaine.
We cannot hold that the District Court clearly erred in
adopting the Government’s findings on the amount of drugs
attributable to Campbell. First, as we noted earlier,
Campbell did not present any evidence that would have
contradicted his earlier statements to law enforcement
officials. Moreover, statements from informants
corroborated that Campbell dealt in these amounts. Finally,
the Government also stated that it had a tape recording of
Campbell proposing the sale of a kilogram of crack cocaine.
Thus, we conclude that the District Court did not err in
finding that 1.5 kilograms of crack cocaine could be
attributed to Campbell.
IV.
Accordingly, for the reasons explained above, we will
affirm the District Court’s sentence.
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SLOVITER, Circuit Judge, concurring.
This court held in United States v. Vazquez, 271 F.3d 93(2001), a closely divided en banc decision, that the
defendant’s sentence following his conviction for drug
conspiracy was not plain error despite the failure to submit
the issue of drug quantity to the jury. I wrote for the
dissent that the error affected defendant’s substantial
rights, relying on the decision in Apprendi v. New Jersey.
The Supreme Court has now unanimously rejected that
view in United States v. Cotton, 122 S. Ct. 1781 (2002).
Therefore, I join the opinion of the majority.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
15