Campbell v. United States, Case No. 1:10CV000105 SNLJ
| Decision Date | 27 October 2011 |
| Docket Number | Case No. 1:10CV000105 SNLJ |
| Parties | KENNETH T. CAMPBELL, Movant, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
This case is a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by Kenneth T. Campbell, a person in federal custody. On May 28, 2009, Campbell plead guilty before this Court to the offense of possession with intent to distribute a substance containing five grams or more cocaine base, and on August 17, 2009, this Court sentenced Campbell to the Bureau of Prisons for a term of 188 months, the low end of the Sentencing Guidelines range. Campbell's § 2255 action, which is based on several allegations of ineffective assistance of counsel, is fully briefed and ripe for disposition.
On August 15, 2007, Kenneth T. Campbell was a passenger in a vehicle that displayed an improper license plate. After observing police in the area, the driver of the car parked and both Campbell and the driver walked away from the vehicle. Police officers utilized a canine to conduct an exterior sniff of the vehicle. The canine alerted to the presence of controlled substances on the front passenger side door, which is where Campbell had been seated. Once the officers searched the vehicle, they seized suspected cocaine base from the center console. The substance was analyzed by a forensic chemist who determined that the substance was in factcocaine base, also known as "crack" cocaine, weighing 21.32 grams. That quantity, 21.32 grams of "crack" cocaine, is consistent with possessing the drug with the intent to distribute.
A DNA profile was developed from the plastic bag containing the 21.32 grams of cocaine base and compared to a sample of Campbell's DNA. According to a Criminalist at the Missouri State Highway Patrol Crime Laboratory Division, the DNA profile taken from the plastic bag was found to be consistent with Campbell's DNA. The approximate frequency of such a match is only one in 2.05 quintillion in the Black population. Campbell admitted that he placed the cocaine base in the center console for the driver with the knowledge that the cocaine base would be distributed to other persons.
On December 11, 2008, Campbell was indicted by a grand jury based on the aforementioned conduct. His initial appearance in federal court was on February 27, 2009. Campbell waived pre-trial motions on May 15, 2009 in open court, his attorney having previously filed a written waiver.
On May 28, 2009, Campbell pled guilty to possessing 21.32 grams of cocaine base as charged in the Indictment in case number 1:08CR158SNLJ. Pursuant to the Plea Agreement Campbell agreed to plead guilty to the charge in the single count Indictment. (Plea Stip, ¶2.A) The parties recommended that the base offense level under U.S.S.G. §2D1.1(c) was 26, however, noted that "[i]n the event the defendant is found to be a career offender, the parties recommend that the base offense level is 34 as found in Section 4B1.1(b)(A)." (Plea Stip, ¶3.B.(1)) The parties recommended that Campbell should receive a three level decrease for acceptance of responsibility. (Plea Stip, ¶3.D) The parties left the determination of Campbell's criminal history category to the District Court. (Plea Stip, ¶3.F.) Campbell admitted that he had one priorfelony controlled substance conviction. (Plea Stip, ¶4)
Following the plea, a Presentence Investigation Report (PSR) was prepared by United States Probation Officer Sherry L. Persinger-Miller. Officer Miller recommended that Campbell met the requirements for application of the career offender provision, U.S.S.G. §4B1.1 (PSR, ¶24), and thus the total offense level, after consideration of a three level deduction for acceptance of responsibility, was 31 (PSR, ¶25).
Campbell's criminal history calculation revealed fourteen (14) criminal history points, which established a criminal history category VI. (PSR, ¶71) Campbell's status as a career offender also supported that his criminal history category should be VI. Id.
The two convictions that qualified Campbell as a career offender arose from two separate cases--Sale of a Controlled Substance (cocaine base) in Cape Girardeau County Circuit Court case number 05G9-CR01379-01 (PSR ¶55) and Resisting a Lawful Stop thereby Creating a Substantial Risk of Serious Physical Injury or Death to Other Persons in Cape Girardeau County Circuit Court case number 06G9-CR00388-01 (PSR ¶¶59 and 61). The conduct supporting Campbell's Resisting a Lawful Stop conviction was specifically stated in the Felony Information, as follows:
on or about March 4, 2006. . .Ptlm. Wiedner, a law enforcement officer, was attempting to make a lawful stop of a vehicle being operated by [Campbell], and [Campbell] knew or reasonably should have known that the officer was making a lawful stop, and, for the purpose of preventing the officer from effecting the stop, resisted the stop of [Campbell] by fleeing from the officer and [Campbell] fled in such a manner that created a substantial risk of serious physical injury or death to other persons in that [Campbell] failed to stop at numerous stop signs, struck a patrol car that was occupied by a police officer and by driving completely off the roadway numerous times.
See, copy of Felony Information and Judgment for case number 06G9-CR00388-01, attached asGovernment Exhibit #2. In the same case, Campbell was also charged with and pled guilty to Driving While Intoxicated. Id.
In addition, Campbell had several countable misdemeanor convictions, including:
Domestic Assault Third Degree (PSR ¶63), Driving While Intoxicated (PSR ¶59), and three separate Driving While Suspended cases (PSR ¶¶47, 51, 59). Furthermore, Campbell had five driving related misdemeanor convictions, as well as one Resisting Arrest conviction for which no points were assessed. (PSR ¶¶28, 31, 34, 37, 40, 43) Finally, Campbell was on parole at the time of the instant offense and had been released from his latest term of imprisonment less than two years prior to the instant offense. (PSR, ¶¶69, 70)
Campbell ultimately did not object to the findings of fact contained in the Presentence Report , although a Sentencing Memorandum (Document 37) was filed that clarified Campbell's position as to his involvement in the instant offense and the fact he should receive a total of three points for acceptance of responsibility. (Document 37 at pp. 1-2) The final copy of the PSR concluded that the applicable sentencing range was 188 to 235 months. (Sent. Tr. 3)
On August 17, 2009, this Court conducted a sentencing hearing in this case. During the hearing and within his sentencing memorandum, Campbell asked this Court to order a sentence of 120 months. (Sent. Tr. 5 and Document 37 at p. 3) Campbell's attorney, Assistant Federal Public Defender Michael Skrien, spoke on Campbell's behalf. Mr. Skrien requested that this Court consider "the wave of changes occurring right now with respect to sentencing, especially crack cocaine offenders," the possibility that the career offender provision may likely be changed, Campbell's youth and substantial family support, and the fact Campbell was cognizantof his mistakes and "prepared to pay the price." (Sent. Tr. 4-5) Mr. Skrien then asked this Court to order a sentence well below the applicable sentencing guidelines range, 120 months. (Sent.Tr. 5)
On his own behalf, Campbell made the following statement:
(Sent. Tr. 5-6) In response to Campbell's statement regarding the misdemeanor resisting arrest conviction, this Court clarified that Campbell's felony resisting a lawful stop conviction, which involved the defendant fleeing "in such a manner that created a substantial risk of serious physical injury or death to other persons" was one of the qualifying predicates for application of the career offender provision in Campbell's case, not the misdemeanor for Resisting Arrest. (Sent. Tr. 7-8) (Emphasis added.) Campbell had both a felony Resisting a Lawful Stop conviction (PSR ¶59), which qualified as a predicate violent felony for application of the career offender provision, as well as a misdemeanor Resisting Arrest conviction (PSR ¶28; facts supporting that case were that Campbell "fled on foot from a lawful detention by a police officer," id.) for which he was not assessed any criminal history points and was not a predicate violent felony. The second predicate conviction for application of the career offender provision was Campbell's Sale of a Controlled Substance conviction. (PSR ¶¶24, 55)
The Government requested that the Court consider ordering a sentence at the low end of the applicable guidelines range (Sent. Tr. 3-4), based on a number of factors, including that Campbell: 1) aided and abetted another individual in the possession of 21.32 grams of cocaine base with the intent to distribute on June 3, 2008 (PSR, ¶9); 2) sold cocaine base to an undercover officer on a prior occasion (PSR, ¶57); 3) has been convicted of two countable felonies and five countable misdemeanors...
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