                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-30-2004

USA v. Campbell
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1476




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                                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                   __________

                                         No. 04-1476
                                         __________

                             UNITED STATES OF AMERICA
                                                Appellee,

                                               v.

                                   ALISTER CAMPBELL
                                                  Appellant.
                                       __________

                     On Appeal from the United States District Court
                          For the Middle District of Pennsylvania
                                 (Crim. A. No. 03-00193)
                   District Judge: The Honorable Christopher C. Conner
                                       __________


                          Argued: Wednesday, December 15, 2004
                                     ___________

    Before: NYGAARD and GARTH, Circuit Judges, and POLLAK, District Judge*

                            (Opinion Filed: December 30, 2004)
                                       __________

                                          OPINION
                                         __________




       *
        The Honorable Louis H. Pollak, United States District Court for the Eastern District of
Pennsylvania, sitting by designation.
Garth, Circuit Judge:

       Appellant Alister Campbell challenges his federal sentence of 63 months

imprisonment, claiming that the application of a four-level enhancement under U.S.S.G §

2K2.1(b)(5) contravened the requirements of due process because he received insufficient

notice of the other “felony offense” justifying the imposition of the enhancement. W e

have jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. We will affirm.

                                             I.

       Because we write exclusively for the benefit of the parties who are well acquainted

with the facts and procedural posture of the present action, we will recount only those

matters relevant to the issues before us.

       On July 23, 2003, Campbell was charged with possession with intent to distribute

cocaine in violation of 21 U.S.C. § 841(a)(1) (Count I), possession of a firearm by a

fugitive from justice in violation of 18 U.S.C. § 922(g)(2) (Count II), possession of a

firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1) (Count

III), and possession of a firearm with an obliterated serial number in violation of 18

U.S.C. § 922(k) (Count IV). Following plea negotiations, Campbell appeared before the

Honorable Christopher C. Conner, U.S.D.J., and pled guilty to Count II (possession of a

firearm by a fugitive). The United States reserved the right to recommend a sentence up

to and including the maximum sentence of ten years.

       The Presentence Report, which was prepared on December 16, 2003,



                                             -2-
recommended a four-level enhancement under U.S.S.G § 2K2.1(b)(5) for possessing a

firearm in connection with “another felony offense”– specifically, possession with intent

to distribute crack cocaine. Campbell filed objections, and following a sentencing

hearing on February 19, 2004, the District Court found the evidence insufficient to

support the assertion that the crack cocaine was possessed with the intent to distribute.

As a result, possession with intent to distribute cocaine could not serve as “another felony

offense” for purposes of applying a four-level increase under § 2K2.1(b)(5).

       However, the District Court still applied the four-level enhancement. The

rationale was as follows: Although the District Court had found that the Government had

failed to establish that Campbell’s acknowledged possession of crack was for distribution

rather than for personal use, possession for the defendant’s own use was itself a crime.

To be sure, possession for Campbell’s own use would, standing alone, have been, for

federal purposes, a minor crime–a misdemeanor rather than a felony. But the fact that

Campbell had, at an earlier time, pled guilty in a state court to possessing drugs

(marijuana) served, under the doubling provisions of 21 U.S.C. § 844(a), to convert

possession of crack for personal use into a felony, and hence “another felony offense”

within the meaning of § 2K2.1(b)(5). Accordingly, the District Court sentenced

Campbell to serve a total term of imprisonment of 63 months, to run consecutively to a

state sentence he was already serving.

       This timely appeal followed. We exercise plenary review over the District Court’s



                                             -3-
interpretation and application of the Guidelines. United States v. Carey, 382 F.3d 387,

391 (3d Cir. 2004) (citation omitted).

                                                 II.

       Section 2K2 of the Sentencing Guidelines governs sentence determinations for

convictions based on violations of federal firearms laws. In particular, § 2K2.1(b)(5) of

the Sentencing Guidelines provides for a four-offense-level adjustment for a firearms

offense if the defendant used or possessed any firearm “in connection with another felony

offense” or “with reason to believe that it would be used or possessed in connection with

another felony offense.” U.S.S.G. § 2K2.1(b)(5). 1 Application Note 7 to Sentencing

Guideline § 2K2.1 defines “felony offense” as “any offense . . . punishable by

imprisonment for a term exceeding one year, whether or not a criminal charge was

brought, or conviction obtained.” 2

       Campbell argues that the District Court erred when it imposed this four-level

enhancement on his sentence without giving him proper notice. He argues that due

process requires that he receive some notice of the actual “felony offense” used by the


       1
           § 2K2.1(b)(5) provides:

       If the defendant used or possessed any firearm or ammunition in connection with another
       felony offense; or possessed or transferred any firearm or ammunition with knowledge,
       intent, or reason to believe that it would be used or possessed in connection with another
       felony offense, increase by four levels.
       2
         Commentary to the Sentencing Guidelines is authoritative unless it violates the
Constitution or a federal statute or is clearly inconsistent with the text of the Guidelines. Stinson
v. United States, 508 U.S. 36, 40-48 (1993).

                                                 -4-
court in imposing the four-level enhancement. The Government contends that Campbell

received sufficient notice and, in any event, was not prejudiced by the District Court’s

change in justification. A threshold question here, then, concerns the degree or type of

notice required for an adjustment in these circumstances.

       Campbell relies heavily on the filing requirement of 21 U.S.C. § 851. That section

provides, in pertinent part:

       No person who stands convicted of an offense under this part shall be sentenced to
       increased punishment by reason of one or more prior convictions, unless before
       trial, or before entry of a plea of guilty, the United States attorney files an
       information with the court (and serves a copy of such information on the person or
       counsel for the person) stating in writing the previous convictions to be relied
       upon.

21 U.S.C. § 851(a)(1).

       Insofar as § 851 has any application here,3 the Seventh Circuit has held that notice

under § 851 is not required in order for a court to find an enhancement under §

2K2.1(b)(5). See United States v. Irby, 240 F.3d 597, 600 (7th Cir. 2001). We find no

reason to depart from the Seventh Circuit’s treatment of the issue. Accordingly, we

conclude that Campbell’s reliance on § 851 is misplaced.



       3
           By its terms, § 851 applies only to those individuals who are convicted under Part D of
United States Code, Title 21. Campbell was not convicted of an offense under that Part. He was
convicted of being a fugitive in possession of a firearm, in violation of 18 U.S.C. § 922(g)(2) –
which is not only a different Part, but a different Title. § 851 is therefore inapplicable. The
Government was not required to file an information concerning Campbell’s prior drug conviction
before the District Court could properly consider it. Furthermore, § 851 does not apply to
sentences enhanced under the Guidelines, as was this one, as opposed to those enhanced pursuant
to the statute.

                                               -5-
       We are unwilling, however, to hold that no notice is required in the present

context. The notice requirement in the sentencing context emanates from the guarantee,

firmly planted in the Guidelines and the Federal Rules of Criminal Procedure, of a

meaningful opportunity to comment. The Sentencing Guidelines require the court to

provide the parties with an adequate opportunity to present information when a

sentencing factor is reasonably in dispute. See U.S.S.G. § 6A1.3 4 ; see also United States

v. Cantero, 995 F.2d 1407, 1413 (7th Cir. 1993) (to satisfy the procedural requirements of

§ 6A1.3, the district court must provide sufficient notice to parties of specific facts which

the court intends to rely on). In addition, the requirements of due process have been

incorporated into the Federal Rules of Criminal Procedure, which provide, in pertinent

part, that “[a]t sentencing, the court: . . . must allow the parties’ attorneys to comment on

the probation officer’s determinations and other matters relating to an appropriate

sentence.” Fed. R. Crim. P. 32(i)(1)(C); United States v. Nappi, 243 F.3d 758, 763 (3d

Cir. 2001) (Fed. R. Crim. P. 32 “emanates from Congress’ concern for protecting a




       4
           § 6A1.3 provides:

       (a) When any factor important to the sentencing determination is reasonably in dispute,
       the parties shall be given an adequate opportunity to present information to the court
       regarding that factor. In resolving any dispute concerning a factor important to the
       sentencing determination, the court may consider relevant information without regard to
       its admissibility under the rules of evidence applicable at trial, provided that the
       information has sufficient indicia of reliability to support its probable accuracy.

       (b) The court shall resolve disputed sentencing factors at a sentencing hearing in
       accordance with Rule 32(i), Fed. R. Crim. P.

                                               -6-
defendant’s due process rights in the sentencing process”).

       In Burns v. United States, 501 U.S. 129 (1991), the Supreme Court interpreted this

rule as entitling defendants to “reasonable notice” before a district court considers an

upward departure from the applicable Guideline range on a ground not identified as a

ground for such departure either in the presentence report or in a prehearing submission

by the Government. Id. at 138-39.5 However, Burns is not controlling in this case

because the District Court did not depart from the Guideline range, but rather adjusted

Campbell’s sentence in conformity with the applicable Guideline range identified in the

Presentence Report. See United States v. Adipietro, 983 F.2d 1468, 1473 (8th Cir. 1993)

(distinguishing between upward departures and adjustments or enhancements and holding

that “[w]hile Burns mandates that both parties be given adequate notice before a court

departs from the applicable guideline range . . . Burns does not mandate that adequate

notice must be given before a district court addresses an adjustment or enhancement”);

United States v. Canada, 960 F.2d 263, 266 (1st Cir. 1992) (same).

       Even though Burns is not strictly applicable here, Rule 32 and § 6A1.3 of

Guidelines would still appear to prescribe some level of notice. As we have recently held,

counsel for the defendant and the government must be provided with sufficient notice to


       5
           Fed. R. Crim. P. 32(h) was amended in 2002 to read somewhat more expansively than
the holding in Burns. The Rule currently reads, “[b]efore the Court may depart from the
applicable sentencing range on a ground not identified for departure either in the pre-sentence
report or in a party’s pre-hearing submission, the court must give the parties reasonable notice
that it is contemplating such a departure. The notice must specify any ground on which the court
is contemplating a departure.”

                                              -7-
allow an “opportunity to comment” at the sentencing hearing on the information and

conclusions in the pre-sentence report and “other matters relating to the appropriate

sentence.” Nappi, 243 F.3d at 763 (quoting Fed. R. Crim. P. 32(i)(C)); see also United

States v. Carey, 382 F.3d 387, 392 (3d Cir. 2004) (“Taken together, the Guidelines, Rules

of Criminal Procedure and case law provide that, in general, when there are factors that

may have a measurable effect on the applicable punishment, notice must be given to the

defendant to allow an opportunity to comment on their accuracy.”). When notice is

required, the adequacy of notice is assessed by reference to the specific facts and

circumstances of each case. See United States v. Reynoso, 254 F.3d 467, 474 (3d Cir.

2001) (“[W]e decline to establish a hard-and-fast rule as to how much advance notice is

required; the answer will vary from case to case, depending on the complexity of the

sentencing issue in dispute and the volume of additional material upon which the court

intends to rely.”).

       The facts and circumstances of this case indicate that the notice afforded Campbell

was adequate to satisfy Rule 32 and § 6A1.3 (and therefore due process). Indeed, three

other circuits have essentially held that the Guidelines themselves give a defendant all the

notice required regarding any adjustments a district court contemplates imposing. See

United States v. Knight, 76 F.3d 86, 88 (5th Cir. 1996) (if defendant has actual knowledge

of facts on which court bases enhancement, the Sentencing Guidelines themselves

provide sufficient notice to satisfy Fed. R. Crim. P. 32 and U.S.S.G. § 6A1.3); United



                                             -8-
States v. Willis, 997 F.2d 407, 417 (8th Cir. 1993), cert. denied, 510 U.S. 1050 (1994)

(the guidelines themselves, the trial testimony, and the argument at the sentencing hearing

were sufficient notice); United States v. Adipietro, 983 F.2d at 1473 (same); United States

v. Canada, 960 F.2d at 266 (Burns does not require “special notice where, as here, a court

decides that an upward adjustment is warranted based on offense or offender

characteristics delineated within the Sentencing Guidelines themselves, at least where the

facts relevant to the adjustment are already known to defendant”). 6

       Here, Campbell had actual knowledge of the facts on which the District Court

based the enhancement. His prior convictions were identified in the Presentence Report,

including the conviction for simple possession in North Carolina. Moreover, Campbell

cannot say that he was unaware that § 2K2.1(b)(5) would be an issue at sentencing. In the

Presentence Report, that specific section of the Guidelines was identified as a basis for

adjustment. While the specific felony used for a § 2K2.1(b)(5) enhancement was not

expressly identified, the underlying facts were known to Campbell. Under these



       6
          It should be noted that at least one circuit has expressed some disagreement with those
cases. In United States v. Jackson, 32 F.3d 1101 (7th Cir. 1994), the Seventh Circuit held that
“Rule 32 and § 6A1.3 of the Guidelines require both reasonable advance notice, i.e., knowledge,
of the ground on which the district court is contemplating an enhancement as well as a
meaningful opportunity to challenge the issue.” Id. at 1108 (italics omitted). As Judge Posner
noted in his concurrence, Canada (First Circuit) and Adipietro and Willis (Eighth Circuit) may be
“unrealistic,” “given the too-frequent inadequacy of criminal defense lawyers.” Id. at 1112
(Posner, J., concurring). Notably, however, the Seventh Circuit distinguished the First and
Eighth Circuit cases, stating that there was no evidence in the record to indicate that the
defendant had knowledge of the facts giving rise to the sentencing enhancement. Id.


                                               -9-
circumstances, no further notice was required.

       Moreover, even if Campbell is correct and there was not adequate notice, we have

held, in an analogous context, that “[a] district court’s failure to provide notice before

departing upward may be considered harmless unless the defendant can prove that he

would have done things differently had notice been given.” United States v. Himler, 355

F.3d 735, 742 (3d Cir. 2004) (citations omitted). The burden is on the government to

prove that the error was harmless. See United States v. Stevens, 223 F.3d 239, 242 n.4

(3d Cir. 2000). Whether the error was harmless depends on whether it “affect[ed]

substantial rights.” Nappi, 243 F.3d at 768. “[I]n most cases, [“affect[ed] substantial

rights”] means that the error must have been prejudicial: It must have affected the

outcome of the district court proceedings.” Id. (citation omitted); see also Reynoso, 254

F.3d at 475 (trial court’s violation of the Rule 32 notice requirement did not affect

defendant’s substantial rights, so as to merit plain error relief).

       Campbell argues that he suffered prejudice from the putative lack of notice,

emphasizing three ways in which the outcome may have been affected, all of which, as

the Government has shown, are baseless. First, he argues that he would have “raised

defenses to the application of the enhancement including the issue of whether the firearm

was actually connected to the simple possession charge or merely coincidental to the

controlled substance possession.” Appellant’s Br. at 10. But as the Government points

out, Campbell testified at the sentencing hearing that the firearm had no relation to the



                                              -10-
drugs.7

          Second, Campbell argues that he would have challenged whether his possession of

the controlled substance was “knowing.” This argument is foreclosed by his admissions

under oath – he testified at the sentencing hearing that he possessed the drugs for personal

use.

          Third, Campbell argues that he would have challenged the legal basis of the

predicate conviction in North Carolina. Campbell has failed to specify a reasonable basis

to challenge the prior conviction. The undisputed facts here, as reflected in the

Presentence Report, are as follows: first, Campbell was tried as an adult; second, he was

represented by counsel; third, he pled guilty; and fourth, he received a suspended jail

sentence with a year of probation on December 2, 1998. Consequently, there is no

reasonable basis upon which Campbell could challenge the predicate conviction.

          Accordingly, the Government has shown that notice, if required, would not have

changed the outcome of the sentencing proceedings.

                                              III.

          We hold that the District Court committed no error under the Rule 32 and § 6A1.3



          7
         In any event, Campbell’s arrest took place when the Marshalls found him at the
residence of Kenya McLaughlin in possession of a 9mm handgun and four grams of crack
cocaine. The phrase “in connection with,” used in § 2K2.1(b)(5), is to be construed “broadly”
and “expansively.” United States v. Loney, 219 F.3d 281, 284 (3d Cir. 2000). In light of
Campbell’s possession of a gun and the drugs, there is little question that the District Court
properly applied the § 2K2.1(b)(5) four-level enhancement.


                                              -11-
notice requirement, and, even if it did, such error was harmless. 8 Accordingly, we will

affirm the Judgment of the District Court.




       8
         Campbell further argues that the application of § 2K2.1(b)(5) nullified the negotiated
plea agreement, which purportedly precluded the government from seeking enhancements based
on the dismissed counts. As the Government argues, however, it never agreed that it would
forego seeking a four-level enhancement under § 2K2.1(b)(5); the plea agreement provided for
the dismissal of the remaining counts, not the preclusion of sentencing enhancements.
        In addition, Campbell argues that § 2K2.1(b)(5) violates due process by punishing
defendants on the basis of unreliable speculation without specific guidance or regulation. He
argues, moreover, that separation of powers concerns – that the sentencing enhancement is based
upon speculation of prosecutorial intent – cast doubt on the validity of § 2K2.1(b)(5). See
U.S.S.G. § 2K2.1, Application Note 7 (providing that the term “felony” includes any charges that
“could have been brought”). Essentially, then, he challenges the constitutionality of Note 7,
which is otherwise authoritative. See supra n.2. No court has ever found this inclusion
unconstitutional. In any case, the District Court’s sentencing decision here was based on
uncontradicted facts: Campbell’s admission under oath to drug possession and his prior
convictions. Nothing in the District Court’s sentencing procedures implicated constitutional
concerns.

                                              -12-
