United States v. Campbell

Decision Date11 September 2019
Docket NumberNo. 17-10561,17-10561
Parties UNITED STATES of America, Plaintiff-Appellee, v. Roger William CAMPBELL II, aka Roger William Campbell, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

RAWLINSON, Circuit Judge:

We must decide whether the district court committed plain error by imposing consecutive prison terms following revocation of multiple supervised release terms. Because we conclude that Chapter 7 of the United States Sentencing Guidelines (Guidelines) does not preclude the imposition of consecutive sentences under these circumstances, we affirm the judgment of the district court.

I. BACKGROUND

While working for American Express, defendant Roger William Campbell (Campbell) defrauded a supplier by identifying certain parts covered by the contract between the supplier and American Express as defective, and ordering replacement parts from the supplier. Rather than returning the "defective" parts to the supplier upon receipt of the replacement parts, Campbell sold the replacement parts to third parties. Following a guilty plea, Campbell was convicted of 35 counts of mail fraud. The district court sentenced Campbell to 35 concurrent 24-month prison terms followed by 35 concurrent three-year supervised release terms. The court also imposed a special assessment of $ 3,400 and restitution in the amount of $ 857,616. After Campbell began serving his supervised release term, Campbell's probation officer reported that Campbell failed to perform community service, pay restitution, submit financial reports, or remain in contact.

In August, 2015, Campbell's probation officer filed a petition to revoke supervised release, and requested a warrant for Campbell's arrest, which the district court issued. After his arrest in 2017, Campbell admitted to a Grade C violation of his supervised release for failing to contact his probation officer.

The probation officer calculated Campbell's sentencing range as three to nine months' imprisonment under Chapter 7 of the Guidelines. At the disposition hearing, the probation officer recommended a sentence of 30 months' imprisonment for five counts (five consecutive six-month terms) and 30 concurrent one-day terms for 30 counts. The probation officer recommended two concurrent terms of supervised release: (1) 30 months for each of five counts, and (2) 35 months and 29 days for each of 30 counts. The government concurred with the probation officer's recommendation.

Campbell's counsel requested the court to "consider a sentence within the policy statement, ... within the three to nine months range." The district court responded that the recommended sentence was "actually within the policy statement[;] it's just consecutive." The district court ultimately imposed sentences of 25 months' imprisonment (consecutive five-month terms for each of five counts) and 30 concurrent one-day terms for each of thirty counts, to run concurrently with the 25-month sentence. The district court imposed two concurrent supervised release terms: (1) a 31-month term for each of five counts, and (2) a 35-month-and-one-day term for 30 counts. Campbell timely appealed.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. "We review a sentence imposed on revocation of supervised release under the Booker1 reasonableness standard. ..." United States v. Montes-Ruiz , 745 F.3d 1286, 1289 (9th Cir. 2014) (citation and internal quotation marks omitted). We review de novo the district court's interpretation of the Guidelines, and the district court's factual findings for clear error. See United States v. Gasca-Ruiz , 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc).

Generally, we review the district court's application of the Guidelines for abuse of discretion. See id. However, when a defendant does not raise an objection to his sentence before the district court, we apply plain error review. See United States v. Gallegos , 613 F.3d 1211, 1213 (9th Cir. 2010). Although Campbell requested the district court to consider imposing a concurrent sentence, he raised no objection to the actual sentence imposed. A request to consider a position does not equate to an objection. See id. (applying plain error review when defendant requested a concurrent sentence but raised no objection to the sentence imposed).

"Plain error is (1) error, (2) that is plain, and (3) that affects substantial rights. If these three conditions are met, we may then exercise [our] discretion to grant relief if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Hammons , 558 F.3d 1100, 1103 (9th Cir. 2009) (citations and internal quotation marks omitted).

III. DISCUSSION

We have previously held that 18 U.S.C. § 3584(a) ( § 3584(a) ) confers discretion to impose consecutive or concurrent imprisonment terms upon revocation of concurrent supervised release terms. See 18 U.S.C. § 3584(a) ("If multiple terms of imprisonment are imposed on a defendant at the same time, ... the terms may run concurrently or consecutively ..."); see also United States v. Jackson , 176 F.3d 1175, 1178–79 (9th Cir. 1999) (per curiam) (relying upon the language of § 3624 to impose consecutive terms of imprisonment following the revocation of concurrent supervised release terms); United States v. Xinidakis , 598 F.3d 1213, 1217 (9th Cir. 2010) (citing Jackson in reaching the same conclusion). Taking a different approach, Campbell argues that Chapter 7 mandates the imposition of concurrent imprisonment terms upon revocation of concurrent supervised release terms. Campbell specifically relies upon the "negative pregnant rule" and the "rule of lenity" to shape his argument that Chapter 7 of the Guidelines precludes the imposition of consecutive terms of imprisonment following revocation of supervised release involving concurrent terms of supervised release.

Campbell describes the "negative pregnant rule" as embodying a principle from the Supreme Court decision in Russello v. United States , 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) ("Where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion. ...") (citations and alteration omitted).

Notwithstanding that § 3584(a) explicitly provides that terms of imprisonment may run concurrently or consecutively, Campbell seeks to apply the negative pregnant rule to Chapter 7 of the Guidelines. Campbell asserts that because other provisions of Chapter 7 expressly provide for consecutive sentences upon revocation of supervised release, the absence of an express provision for consecutive sentencing upon revocation of multiple concurrent supervised release terms militates against the availability of such a sentence.

Although we have not previously addressed this precise issue, two of our sister circuits have rejected Campbell's argument predicated on the negative pregnant rule. In United States v. Quinones , 136 F.3d 1293 (11th Cir. 1998), the Eleventh Circuit noted that § 3584(a) "permits a court to order multiple terms to run consecutively." Id. at 1294 (footnote reference omitted). The court was not persuaded that the lack of a policy statement in Chapter 7 regarding "concurrence or consecutiveness" altered the court's discretion. Id. at 1295. Rather the court concluded that "this silence [on concurrence or consecutiveness] leaves intact the district court's statutory discretion." Id.

The Fifth Circuit has ruled similarly on this issue. In United States v. Gonzalez , 250 F.3d 923 (5th Cir. 2001), the defendant argued that "consecutive prison sentences after revocation of concurrent terms of supervised release" should be precluded. Id. at 926. Relying on the Eleventh Circuit's decision in Quinones , the Fifth Circuit "reject[ed] Gonzalez's contention that the policy statements in chapter seven of the Sentencing Guidelines should be read to preclude consecutive sentencing." Id. at 929 n.8 (citing Quinones , 136 F.3d at 1295 ); see also United States v. Johnson , 138 F.3d 115, 118 (4th Cir. 1998) (rejecting the argument that Chapter 7 does not "authorize consecutive sentences for simultaneous violations of supervised release") (internal quotation marks omitted); United States v. Cotroneo , 89 F.3d 510, 513 (8th Cir. 1996) (concluding in the context of revocation of concurrent supervised release terms that "the District Court retains discretion to impose either concurrent or consecutive sentences after revocation of a defendant's supervised release").

Campbell's reliance on the rule of lenity fares no better. Campbell urges us to resort to the rule of lenity to interpret "Chapter 7's silence-and thus, ambiguity-on the question of consecutive sentencing in this context as a recommendation against such a practice." (emphasis in the original). However, we have defined ambiguity for the purpose of applying the rule of lenity as a "grievous" lack of clarity even after applying all interpretive aids to construe the language of the Guidelines. United States v. D.M. , 869 F.3d 1133, 1144 (9th Cir. 2017) ; see also United States v. Kelly , 874 F.3d 1037, 1049 (9th Cir. 2017). Our analysis of Chapter 7 of the Guidelines is significantly advanced by the ultimate interpretive aid-the governing statute, which specifically bestows discretion upon the sentencing court to impose consecutive sentences when multiple sentences are under consideration. See 18 U.S.C. § 3584(a) ("If multiple terms of imprisonment are imposed on a defendant at the same time, ... the terms my run concurrently or consecutively ..."). Contrary to Campbell's position that silence in Chapter 7 regarding consecutive sentences creates ambiguity triggering the rule of lenity, we agree with the Fifth and Eleventh...

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