United States v. Campbell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 97-4946
WILLIAM DEANGELO CAMPBELL, a/k/a
Tank Campbell, a/k/a "D,"
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
W. Earl Britt, Senior District Judge.
(CR-96-7-BR)
Submitted: June 16, 1998
Decided: July 20, 1998
Before ERVIN, WILKINS, and HAMILTON, Circuit Judges.
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Affirmed in part and dismissed in part by unpublished per curiam
opinion.
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COUNSEL
James M. Ayers, II, New Bern, North Carolina, for Appellant. Janice
McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant
United States Attorney, Peter W. Kellen, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
William DeAngelo Campbell was convicted by a jury of bank rob-
bery, see 18 U.S.C.A. § 2113(a), (d) (West Supp. 1998), 18 U.S.C.
§ 2 (1994), and using a firearm in a crime of violence, see 18
U.S.C.A. § 924(c) (West Supp. 1998), 18 U.S.C.§ 2. At his first sen-
tencing in November 1996, after a two-month evaluation by the
Bureau of Prisons, Campbell was found to be suffering from a mental
disease or defect. The district court denied Campbell's motion for a
downward departure based on diminished capacity, see USSG
§ 5K2.13, p.s.,* and committed him to a suitable facility for treatment
in lieu of a sentence of imprisonment. See 18 U.S.C. § 4244 (1994).
In November 1997, having received notice from the Bureau of Pris-
ons of Campbell's recovery, the district court sentenced him to 46
months imprisonment for the bank robbery and a consecutive 60-
month term for the § 924(c) conviction. Campbell appeals, arguing
that the district court abused its discretion by denying him a down-
ward departure based on the fact that he was no longer a threat to
society and the disparity between his sentence and that of his co-
defendant. Alternatively, he suggests that he should receive a new
trial or a new evaluation to determine whether he was competent at
the time of the offense. We affirm in part and dismiss in part.
The district court's decision not to depart is not reviewable on
appeal. See United States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990).
We therefore dismiss for lack of jurisdiction that portion of the appeal
which challenges the district court's failure to depart.
Because Campbell did not raise an insanity defense or request a
new trial in the district court, we review the remaining two issues
under the plain error standard. See United States v. Olano, 507 U.S.
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*U.S. Sentencing Guidelines Manual (1995).
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725, 732 (1993). In order to establish our authority to notice an error
not preserved below, Campbell must show that an error occurred, that
the error was plain, and that the error affected his substantial rights.
See Olano, 507 U.S. at 732. Even if he can satisfy these requirements,
correction of the error remains within our sound discretion, which we
"should not exercise . . . unless the error ``seriously affect[s] the fair-
ness, integrity or public reputation of judicial proceedings.'" Olano,
507 U.S. at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160
(1936)). Here, we cannot say that, in the absence of a defense motion,
the district court plainly erred in failing to order either an evaluation
of Campbell's mental state at the time of the robbery or a new trial.
The judgment is therefore affirmed. That portion of the appeal
which challenges the district court's decision not to depart is dis-
missed. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED IN PART; DISMISSED IN PART
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