           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                       2     Campbell v. United States                     No. 03-1178
        ELECTRONIC CITATION: 2004 FED App. 0115P (6th Cir.)
                    File Name: 04a0115p.06                               UNITED STATES ATTORNEY, Detroit, Michigan, for
                                                                         Appellee. ON BRIEF: Dennis J. Clark, PLUNKETT &
                                                                         COONEY, Detroit, Michigan, for Appellant. Michael R.
UNITED STATES COURT OF APPEALS                                           Mueller, UNITED STATES ATTORNEY, Detroit, Michigan,
                                                                         for Appellee.
                  FOR THE SIXTH CIRCUIT
                    _________________                                                         _________________

 ROBERT CAMPBELL,                 X                                                               OPINION
         Petitioner-Appellant, -                                                              _________________
                                   -
                                   -  No. 03-1178                          RONALD LEE GILMAN, Circuit Judge. Robert Campbell
           v.                      -                                     appeals from the district court’s denial of his post-conviction
                                    >                                    motion to vacate his sentence. For the reasons set forth
                                   ,                                     below, we AFFIRM the judgment of the district court.
 UNITED STATES OF AMERICA , -
        Respondent-Appellee. -                                                                I. BACKGROUND
                                  N
      Appeal from the United States District Court                          After two mistrials as a result of hung juries, a third grand
     for the Eastern District of Michigan at Detroit.                    jury indicted Campbell on the following three counts:
    No. 01-73211—Arthur J. Tarnow, District Judge.                       (1) conspiracy to possess controlled substances with the intent
                                                                         to distribute and conspiracy to actually distribute the
                    Argued: March 18, 2004                               c o n t r o l l ed s u b s t a n c e s , a l l in v io la tio n o f
                                                                         21 U.S.C. §§ 841(a)(1) and 846; (2) aiding and abetting the
              Decided and Filed: April 20, 2004                          possession of cocaine with the intent to distribute, in violation
                                                                         of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (3) aiding
         Before: COLE and GILMAN, Circuit Judges;                        and abetting the possession of heroin with the intent to
            SCHWARZER, Senior District Judge.*                           distribute, in violation of 21 U.S.C. § 841(a)(1) and
                                                                         18 U.S.C. § 2. In July of 1998, a jury found Campbell guilty
                      _________________                                  on all counts. The district court sentenced Campbell to 324
                                                                         months of imprisonment and 5 years of supervised release.
                           COUNSEL
                                                                           Campbell appealed, alleging numerous errors. In October
ARGUED: Dennis J. Clark, PLUNKETT & COONEY,                              of 2000, this court issued an amended opinion that affirmed
Detroit, Michigan, for Appellant. Michael R. Mueller,                    his conviction and sentence by a 2 to 1 vote, with the dissent
                                                                         favoring a new trial because of the alleged prosecutorial
                                                                         misconduct that occurred during closing argument.
    *
     The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.

                                  1
No. 03-1178                   Campbell v. United States       3    4        Campbell v. United States                 No. 03-1178

  Campbell petitioned to vacate his sentence pursuant to               1.    Ineffectiveness based upon alleged Speedy Trial Act
28 U.S.C. § 2255 in August of 2001. The case was referred                    violation
to a magistrate judge, who issued a 30-page Report and
Recommendation (R&R) concluding that the motion should                Campbell first argues that the district court erred in denying
be denied. Over Campbell’s objections, the district court          his claim that his counsel rendered ineffective assistance by
adopted the R&R. Campbell then applied for a certificate of        not moving for a dismissal of the indictment based upon
appealability as to nine issues, all of which the district court   alleged violations of the Speedy Trial Act. 18 U.S.C.
certified. In January of 2003, Campbell filed a timely notice      §§ 3161-74. The Act requires that a criminal defendant be
of appeal.                                                         brought to trial within 70 days after the filing of an indictment
                                                                   or an arraignment, whichever is later. 18 U.S.C. § 3161(c)(1).
                       II. ANALYSIS                                A retrial that follows a mistrial must start “within 70 days
                                                                   from the date the action occasioning the retrial becomes final
A. Ineffective-assistance-of-counsel claims                        . . . .” 18 U.S.C. § 3161(e). If a defendant is not brought to
                                                                   trial within 70 days, taking into account excludable time
  Campbell asserts numerous ineffective-assistance-of-             periods under the Act, the district court is obligated to dismiss
counsel claims on appeal. To prevail on these claims, he           the indictment on the defendant’s motion. 18 U.S.C.
must establish that (1) his “counsel’s performance fell below      § 3162(a)(2); United States v. Jenkins, 92 F.3d 430, 438 (6th
an objective standard of reasonableness, and (2) there is a        Cir. 1996). The dismissal may be either with or without
reasonable probability that, but for the deficiency, the           prejudice. Id.
outcome of the proceedings would have been different.”
Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003).          Campbell alleges the following three violations of the
“The objective standard of reasonableness is a highly              Speedy Trial Act: (1) 83 days elapsed between the end of his
deferential one and includes a strong presumption that             first trial and the start of his second, (2) approximately 157
counsel's conduct falls within the wide range of reasonable        days elapsed between the second mistrial and the dismissal of
professional assistance.” Mason v. Mitchell, 320 F.3d 604,         the second indictment, and (3) 78 days elapsed between the
616-17 (6th Cir. 2003) (quotation marks omitted). A                dismissal of the second indictment and Campbell’s
“reasonable probability” has been defined by the Supreme           arraignment on the third superseding indictment. The
Court as “a probability sufficient to undermine confidence in      magistrate judge’s R&R concludes that even if violations of
the outcome.” Strickland v. Washington, 466 U.S. 668, 694          the Speedy Trial Act did occur, Campbell cannot demonstrate
(1984).                                                            that he was prejudiced as required by Strickland. For the
                                                                   reasons that follow, we agree.
   When deciding ineffective-assistance claims, courts need
not address both components of the inquiry “if the defendant          In his brief, Campbell asserts that the alleged violations of
makes an insufficient showing on one.” Id. at 697. “If it is       the Speedy Trial Act prejudiced him, but he provides little
easier to dispose of an ineffectiveness claim on the ground of     explanation and no authority to support his contentions.
lack of sufficient prejudice, which we expect will often be so,    Campbell says that the prejudice “is obvious” and that “there
that course should be followed.” Id. These claims, as part of      clearly was prejudice suffered by Campbell.” But he does not
Campbell’s motion to vacate his sentence under 28 U.S.C.           allege any specific prejudice, such as a witness becoming
§ 2255, are reviewed de novo. Griffin, 330 F.3d at 736.            unavailable.
No. 03-1178                   Campbell v. United States          5   6      Campbell v. United States                   No. 03-1178

  Under the Speedy Trial Act, courts must consider the               departure at sentencing based upon Campbell’s crime-free
following three factors when determining whether to dismiss          post-offense conduct and based upon the disproportionality
an indictment with or without prejudice: “[1] the seriousness        between his sentence and those of his codefendants. Neither
of the offense; [2] the facts and circumstances of the case          post-offense behavior nor disproportionality, however, is
which led to the dismissal; and [3] the impact of a                  mentioned in the Sentencing Guidelines as a basis for
reprosecution on the administration of [the Act] and on the          departure. U.S. Sentencing Guidelines §§ 5K2.1-.21; see
administration of justice.” 18 U.S.C. § 3162(a)(1). As               Koon v. United States, 518 U.S. 81, 96 (1996) (noting that a
explained in the R&R, “[e]ach of these factors would have            sentencing court “must bear in mind the [Sentencing]
counseled a dismissal without prejudice” in Campbell’s case:         Commission’s expectation that departures based on grounds
                                                                     not mentioned in the Guidelines will be highly infrequent”).
  Defendant was charged with involvement [in] an
  extensive, serious drug distribution conspiracy, for which            Under the Sentencing Guidelines, the sentencing court may
  he was sentenced to nearly 30 years’ imprisonment. As              impose a sentence below the guideline range where a
  to the second factor, the delays in defendant’s case were          mitigating circumstance exists “of a kind, or to a degree, not
  not extensive and were occasioned in part by the                   adequately taken into consideration by the Sentencing
  complexity of the procedural issues involved, including            Commission in formulating the guidelines that should result
  two previous hung juries and a reindictment because of             in a sentence different from that described.” U.S. Sentencing
  an improperly constituted grand jury. Further, there is no         Guidelines Manual § 5K2.0 (quotation marks omitted). The
  evidence of bad faith or any attempt to take advantage of          R&R and the government both note that neither post-offense
  the delay on the part of the prosecution. Finally, as to the       behavior nor disproportionality is mentioned in the
  third factor, defendant does not allege that he suffered           Sentencing Guidelines as a basis for departure. See U.S.
  any actual prejudice as a result of the delay, and there is        Sentencing Guidelines Manual § 5H1.1-.12 (listing “certain
  no allegation that the government engaged in any                   offender characteristics” relevant “to the determination of
  improper behavior which must be deterred in order to               whether a sentence should be outside the applicable guideline
  insure compliance with the Act. In these circumstances,            range”).
  any dismissal under the Act would have been without
  prejudice.                                                           Campbell argues, however, that his lack of involvement in
                                                                     drug activity or other criminal conduct since his arrest rises to
We have no basis to fault the magistrate judge’s analysis.           the level of “extraordinary post-offense behavior.” But as this
Because Campbell cannot show that he was prejudiced by his           court noted in United States v. Biehl,
trial counsel’s failure to request dismissal for the alleged
violations of the Speedy Trial Act, we affirm the district               [s]ome degree of presentence rehabilitation is to be
court’s denial of relief to Campbell on this claim.                      expected from a penitent defendant, whether due to a true
                                                                         acceptance of responsibility or from one who simply
  2.   Ineffectiveness based upon failure to request a                   wants to “put his best foot forward” at sentencing with
       downward departure                                                hopes of receiving leniency from the sentencing court.
                                                                         Furthermore, in order to keep the temporary liberty
  Campbell next argues that his trial counsel rendered                   defendant was given by delaying his sentence for almost
ineffective assistance by failing to request a downward                  three years, abiding by the fairly typical terms of his
No. 03-1178                      Campbell v. United States     7    8      Campbell v. United States                    No. 03-1178

  presentence release is not unexpected. As the First                   testimony concerning the witness’s current employment.
  Circuit stated, “such predictable reactions, while                    Nowhere in his testimony did Carroll relate any of the
  laudable, fall shy of what we believe is necessary to take            allegations against defendant to organized crime, and he
  cases out of the heartland.”                                          also testified that he was assigned to the Street Unit, not
                                                                        the Organized Crime Control Bureau, at the time he
Nos. 98-3318, 98-3346, 1999 WL 98600, at *3 (6th Cir.                   arrested [Campbell’s] coconspirator Carol Bayless. Thus,
Jan. 25, 1999) (unpublished opinion) (quoting United States             there is not a reasonable probability that the comment
v. Sklar, 920 F.2d 107, 117 (1st Cir. 1990)). Because                   influenced the jury’s verdict in any manner. See, e.g.,
Campbell failed to show that he was prejudiced by his                   United States v. Catalano, No. 91-50372, 1992 WL
counsel’s failure to move for a downward departure based                212322, at *2 (9th Cir. Sept. 3, 1992) (per curiam)
upon either disproportionality or post-offense behavior, we             (defendant not denied a fair trial by prosecutor’s
affirm the district court’s denial of relief to Campbell on this        comments concerning organized crime where references
ground.                                                                 were isolated and not inflammatory); United States v.
                                                                        Thirion, 813 F.2d 146, 156 (8th Cir. 1987) (defendant
  3.        Ineffective assistance based upon trial proceedings         not denied a fair trial by question relating to whether
                                                                        defendant, an attorney, had represented an organized
   Campbell also argues that the following errors occurred              crime figure; the matter came up only once during the
during the trial that deprived him of his Sixth Amendment               course of a lengthy trial and defendant’s answer linked
right to the effective assistance of counsel:                           the client, and not the defendant, to organized
                                                                        crime) . . . .
       a.     Failure to object to government witness’s reference
              to organized crime                                    Because Campbell fails to show that this comment prejudiced
                                                                    him, we affirm the district court’s denial of relief to Campbell
  Campbell contends that his trial counsel was ineffective for      on this issue.
failing to object and move for a mistrial after government
witness Richard Carroll, a New York City police officer,                  b.   Prejudicial remarks to the jury
testified that he was assigned to the Organized Crime Control
Bureau at the time of his testimony. This testimony,                  Campbell argues that his trial counsel rendered ineffective
according to Campbell, “implicitly linked Campbell to this          assistance by making prejudicial remarks to the jury during
criminal group which has [] strongly negative connotations in       his opening and closing statements. In his opening statement,
the minds of most citizen jurors.” The R&R’s thorough               for example, Campbell’s counsel stated:
analysis of this issue explains why Campbell is not entitled to
relief on this basis:                                                   Perform the duties that your oath says that you will do.
                                                                        And whatever your verdict is, it is. If your verdict
  Although defendant contends that this remark was                      ultimately is guilty, so be it; it’s guilty. That’s what our
  “irrelevant, inflammatory and prejudicial,” he does not               system is about . . . .
  state how he was prejudiced by this single reference to
  organized crime. Notably, the comment was in no way               Campbell contends that his counsel’s comments evidenced a
  connected to his case, but was simply part of background          “lack of concern for the verdict” and that his counsel should
No. 03-1178                   Campbell v. United States          9   10    Campbell v. United States                   No. 03-1178

have instead argued “that a reasonable doubt, or doubts,                  d.   Failure to call character witnesses
should arise from the evidence . . . .”
                                                                       Campbell contends that his case presented the jury with a
  As noted in the R&R, these comments “do not amount to              classic credibility question because the government asserted
constitutionally ineffective assistance”:                            that he was involved in drug activity and Campbell denied
                                                                     those allegations. He argues that character witnesses
  On the contrary, counsel repeatedly emphasized the                 “testifying to [his] reputation for truthfulness and veracity
  burden of proof, requiring the prosecutor to prove the             would have been significant.” According to Campbell,
  charges against petitioner beyond a reasonable doubt. He           character witnesses were available to testify on his behalf, but
  also repeatedly stated that, in his view and for the reasons       his trial counsel failed to call them. Campbell concludes that
  he explained at length to the jury, the prosecutor had not         this failure amounts to the ineffective assistance of counsel.
  met this burden. While counsel’s discussion of the
  burden of proof was perhaps not as eloquent as it could               Both the R&R and the government note, however, that
  have been, counsel at all times acted as an advocate for           Campbell failed to provide any information regarding “what
  defendant and pressed defendant’s case. In these                   witnesses should have been examined more fully or what
  circumstances, the comments of counsel do not amount               additional witnesses should have been called.” Consequently,
  to constitutionally ineffective assistance.                        Campbell cannot rebut the strong presumption that his
                                                                     attorney’s actions were the product of sound trial strategy.
We agree, and accordingly affirm the district court’s denial of      Strickland v. Washington, 466 U.S. 668, 690 (1984) (“[T]he
relief to Campbell on this ground.                                   court should recognize that counsel is strongly presumed to
                                                                     have rendered adequate assistance and made all significant
    c.   Failure to propose defense-theory instruction               decisions in the exercise of reasonable professional
                                                                     judgment.”). We accordingly affirm the district court’s denial
  Campbell argues that his counsel’s failure to request a jury       of relief to Campbell on this basis.
instruction explaining his theory of the case amounted to the
ineffective assistance of counsel. In his argument, however,              e.   Eliciting of prejudicial testimony
Campbell does not demonstrate how he was prejudiced by
this omission. The R&R explains that Campbell                          Campbell argues that his trial counsel rendered ineffective
                                                                     assistance by eliciting prejudicial testimony from three
  cannot show that he was prejudiced by counsel’s failure            government witnesses on cross-examination. During the
  because his theory was adequately conveyed to the jury             cross-examination of a Drug Enforcement Agency (DEA)
  by the Court’s instructions on the elements of the                 agent, Campbell’s trial counsel asked whether the agent felt
  government’s charges and the burden of proof.                      that Campbell “may have been somehow with or involved
  Defendant’s theory of the case was a simple denial of              with” the other members of the alleged conspiracy. Campbell
  involvement in the conspiracy.                                     contends that such testimony indicating a connection between
                                                                     Campbell and “admitted drug traffickers . . . could only have
The R&R’s reasoning is persuasive and we therefore affirm            inured to Campbell’s detriment.” With regard to this
the district court’s denial of relief to Campbell on this claim.     testimony, the R&R notes that the questions preceding and
                                                                     following the challenged question show that Campbell’s trial
No. 03-1178                    Campbell v. United States       11   12    Campbell v. United States                 No. 03-1178

counsel was attempting to cast doubt upon the DEA agent’s             surveillance, to indicate that the defendant was involved
belief:                                                               in the crime. In light of counsel’s successful cross-
                                                                      examination, it is difficult to see how this isolated
  Counsel was trying to show that the agent’s belief was              statement would have, in defendant’s view, [led] the jury
  not credible given that he did not have the [car that               to conclude that there were other witnesses who did not
  Campbell was traveling in] followed by another agent                testify.
  when it left the motel parking lot [where the other
  coconspirators were]. Counsel asked a number of                   The R&R reasoned overall that
  questions establishing this fact, as well as the fact that the
  agent did not see defendant carrying anything either to or          [w]hile counsel’s questions to the witnesses may
  from the room in which the other conspirators were                  illustrate a classic example of the first rule of cross-
  apparently conducting the transaction.                              examination; don’t ask a question unless you know what
                                                                      the answer will be, the only issue for the Court is
  Campbell next argues that his counsel’s cross-examination           whether counsel’s conduct in asking the question fell
of a police officer was improper because an inquiry as to             below an objective standard of reasonableness.
where the police officer had previously seen a picture of
Campbell led the officer to respond that he had “seen a             We agree with the R&R’s conclusion that Campbell has
picture on a prior narcotic raid.” This answer is most likely       failed to show that his counsel’s performance was deficient
not what counsel expected, but, as the R&R notes, the               and therefore affirm the district court’s denial of relief to
question was part of a legitimate strategy on the part of           Campbell on this issue.
Campbell’s attorney to question the officer about his
observations and identification of Campbell.                             f.   Failure to impeach witness Orlando Bayless

   Finally, Campbell argues that his defense counsel’s                Campbell contends that his trial counsel’s failure to
question to a DEA agent about whether he was “relying on            impeach Orlando Bayless—a government witness and one of
the word of government witnesses Carol Bayless, Orlando             Campbell’s coconspirators—constituted the ineffective
Bayless, Larry Anderson, and Christopher Owens” was                 assistance of counsel. He argues that his trial counsel should
improper given that the DEA agent answered: “Not solely the         have impeached Bayless regarding inconsistencies between
fact of the people that you were discussing.” Campbell              Bayless’s testimony at Campbell’s second and third trials
contends that this answer implied that there were other             concerning the amount of money Campbell used to purchase
witnesses and other evidence that had not been presented at         the drugs. Campbell also contends that his trial counsel
trial and that such evidence would have been deemed                 should have impeached Bayless with the statement that
improper had it been elicited by the prosecution. Again, we         Bayless initially gave to the police, in which he denied any
agree with the R&R’s analysis, which is as follows:                 knowledge of the money seized by the police.

  This isolated statement came after counsel elicited                  We agree with the R&R’s analysis and conclusion on this
  repeatedly from the agent that he was, in fact, relying           issue, which is as follows:
  primarily on the word of the government witnesses, and
  that he had no independent evidence, through
No. 03-1178                  Campbell v. United States      13    14   Campbell v. United States                   No. 03-1178

  It is true that counsel could have chosen to attack Bayless     prosecutorial misconduct and noted that this court had
  through the inconsistencies in his testimony. However,          rejected the substantive claims on direct appeal. Given this
  the inconsistencies identified by defendant were                court’s resolution of these claims, the R&R concluded that
  relatively minor, addressing whether defendant had              Campbell could not show that his counsel was deficient or
  brought $70,000 or $80,000 to the motel. Counsel                that he was prejudiced by his counsel’s failure to object or
  instead chose to focus his attack on Bayless on the             move for a mistrial.
  substantial sentence reduction Bayless was hoping to
  receive in exchange for his testimony, and on Bayless’s           The district court disagreed with the magistrate’s R&R on
  significant drug related activity. This was a reasonable        this point, rejecting “that portion of the R&R that states the
  trial strategy. Further, defendant is unable to establish       prosecutor’s statements did not rise to prosecutorial
  that he was prejudiced by counsel’s failure to question         misconduct.” “[I]n the absence of a pronouncement from the
  Bayless about these minor inconsistencies.                      Sixth Circuit on this case,” the district court said that it
                                                                  “would have found prosecutorial misconduct.”
Accordingly, we affirm the district court’s denial of relief to
Campbell on this issue.                                              We need not resolve this difference of opinion between the
                                                                  magistrate judge and the district judge, especially because we
    g.   Failure to object to alleged prosecutorial               do not read this court’s prior decision as absolving the
         misconduct                                               prosecutor of any misconduct. The earlier decision on this
                                                                  issue is instead based upon the isolated nature of the remarks
  Campbell argues that his trial counsel’s failure to object to   and the lack of prejudice to Campbell. To succeed on his
several instances of alleged prosecutorial misconduct during      ineffective assistance of counsel claim, Campbell must
the government’s closing argument and to move for a mistrial      demonstrate “that there is a reasonable probability that, but
based upon that alleged misconduct constituted the ineffective    for counsel’s unprofessional errors, the result of the
assistance of counsel. Specifically, Campbell contends that       proceeding would have been different.” Strickland v.
the prosecutor improperly (1) vouched for the credibility of      Washington, 466 U.S. 668, 694 (1984). This he has been
the government’s witnesses, (2) expressed his personal            unable to do. In the case before us, no less than four members
opinion as to Campbell’s guilt, and (3) made inflammatory         of the alleged drug conspiracy testified against Campbell at
emotional appeals to the jury.                                    trial. Given the overwhelming evidence establishing
                                                                  Campbell’s guilt, we believe that he would not have been able
  Campbell raised these identical claims as substantive issues    to show that, but for his attorney’s failure to object to the
in his direct appeal. A prior panel of this court held that the   prosecutor’s alleged misconduct, the result would have been
prosecutor’s remarks were isolated and that “[e]ven if the        different. We accordingly affirm the district court’s denial of
closing argument improperly appealed to the emotions of the       relief to Campbell on this issue.
jury, the error, if any, was not plain because there was ample
evidence in the record to convict Robert.” United States v.         h. Ineffective assistance based upon the cumulative
Campbell, Nos. 98-1782, 98-2174, 2000 WL 1597858, at *4                effect of all alleged errors
(6th Cir. Oct. 19, 2000) (unpublished opinion). In Campbell’s
§ 2255 proceedings, the magistrate judge analyzed the claim         Campbell’s final ineffective-assistance-of-counsel claim is
of ineffective assistance of counsel based upon the alleged       that the “numerous errors concerning matters of great
No. 03-1178                    Campbell v. United States       15    16   Campbell v. United States                    No. 03-1178

importance . . . had to have [had] a substantial effect on the       beyond a reasonable doubt the minimum amount specified in
jury.” We acknowledge that trial-level errors that would be          the indictment and that “the ultimate sentence does not exceed
considered harmless when viewed in isolation of each other           the statutory maximum for this amount.” United States v.
might, when considered cumulatively, require reversal of a           Zidell, 323 F.3d 412, 429 (6th Cir. 2003).
conviction. United States v. Parker, 997 F.2d 219, 221 (6th
Cir. 1993). But we also agree with the R&R that “the                   The government argues that Campbell failed to raise his
accumulation of non-errors cannot collectively amount to a           Apprendi claim either in the trial court or on direct appeal.
violation of due process.” See McKinnon v. Ohio, No. 94-             But Campbell was tried and sentenced in 1998 before
4256, 1995 WL 570918, at *12 (6th Cir. Sept. 27, 1995)               Apprendi and its precursor, Jones v. United States, 526 U.S.
(unpublished opinion) (quoting United States v. Rivera, 900          227, 243 n.6 (1999) (stating Apprendi’s general rule), were
F.2d 1462, 1471 (10th Cir.1990) (“[C]umulative-error                 decided. This court has noted that a defendant’s objection to
analysis should evaluate only the effect of matter determined        the quantity of drugs attributed to him might suffice to
to be in error, not the cumulative effect of non-errors.”);          preserve an Apprendi challenge for appeal. United States v.
United States v. Lumpkin, 192 F.3d 280, 290 (2d Cir. 1999)           Stewart, 306 F.3d 295, 311 (6th Cir. 2002).
(“[T]he accumulation of non-errors does not warrant a new
trial.”).                                                               The present case presents a different procedural posture,
                                                                     however, in that Campbell is arguing that by timely objecting
  Because Campbell has not shown that any of the alleged             on direct appeal to the drug quantities, he preserved his
instances of ineffective assistance of counsel deprived him          Apprendi claim for his § 2255 proceedings. Apprendi was
“of a fair trial, a trial whose result is reliable[,]” Strickland,   decided in June of 2000, after oral argument in Campbell’s
466 U.S. at 687, he cannot show that the accumulation of             direct appeal, but a few months before this court issued its
these non-errors warrant relief. We therefore affirm the             decision. Campbell therefore could have cited Apprendi as
district court’s judgment on this issue.                             supplemental authority while his direct appeal was pending.
                                                                     Fed. R. App. P. 28(j) (“If pertinent and significant authorities
B. Apprendi claim                                                    come to a party’s attention after the party’s brief has been
                                                                     filed—or after oral argument but before decision—a party
  In a completely difference line of attack, Campbell argues         may promptly advise the circuit clerk by letter, with a copy to
that his sentence violates the rule established by the Supreme       all other parties, setting forth the citations.”) (Emphasis
Court in Apprendi v. New Jersey, 530 U.S. 466 (2000). In             added). He in fact failed to do so.
Apprendi, the Supreme Court held that “[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a       Because our ultimate disposition of this issue is not
crime beyond the prescribed statutory maximum must be                dependent on whether or not Campbell preserved his
submitted to a jury, and proved beyond a reasonable doubt.”          Apprendi challenge, we will assume without deciding that he
Id. at 490. This court held in United States v. Page, 232 F.3d       did. The parties do not dispute that if Apprendi applies to this
536, 542-43 (6th Cir. 2000), that Apprendi also applies to the       case, then the quantity of drugs Campbell allegedly possessed
determination as to the amount of drugs necessary to impose          should have been submitted to the jury and proved beyond a
the mandatory minimum sentences provided in 21 U.S.C.                reasonable doubt. Despite this, Apprendi errors are
841(b)(1). Apprendi does not require that a precise amount of        considered to be trial-type errors subject to harmless-error
drugs be found by the jury; it suffices that the jury finds          review. United States v. Copeland, 321 F.3d 582, 603 (6th
No. 03-1178                  Campbell v. United States      17

Cir. 2003). Thus, if the government “can demonstrate beyond
a reasonable doubt that the jury would have found the
defendant liable for the drug quantity at issue in sentencing,
this court must consider the error harmless and sustain the
defendant’s sentence.” Id.
   Campbell’s 324-month sentence was subject to the
enhanced sentencing range governed by 21 U.S.C.
§ 841(b)(1)(A), which increases the range of a defendant’s
sentence from no mandatory minimum and a 20-year
maximum prescribed in 21 U.S.C. § 841(b)(1)(C) to a
mandatory minimum of 10 years and a maximum of life if the
conviction involves more than one kilogram of heroin or
more than five kilograms of cocaine. The increase in
Campbell’s sentencing range, therefore, was attributable to
the amounts of heroin and cocaine involved in the conspiracy.
We agree with the R&R’s conclusion that once the jury found
beyond a reasonable doubt that Campbell was involved in the
conspiracy, “it could have had no doubt that the conspiracy
involved more than one kilogram of heroin and more than
five kilograms of cocaine.”
   The police seized 34 kilograms of cocaine and 2 kilograms
of heroin on a single occasion from one of Campbell’s
coconspirators, to say nothing of the 150 kilograms or more
of cocaine and heroin proven to be involved in the overall
conspiracy. “If this jury was going to convict [Campbell] at
all—which it plainly did— there is simply no way on this
record that it could have failed to find that he was conspiring
to distribute” one kilogram or more of heroin and five
kilograms or more of cocaine. United States v. Nance,
236 F.3d 820, 826 (7th Cir. 2000). Accordingly, we affirm
the district court’s denial of relief to Campbell on his
Apprendi claim.
                    III. CONCLUSION
  For all of the reasons set forth above, we AFFIRM the
judgment of the district court.
