U.S. v. Campbell, 00-4134.

• Decision Date: 28 January 2003
• Docket Number: No. 00-4134.,No. 00-4583.,00-4134.,00-4583.
• Citation: 317 F.3d 597
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John A. CAMPBELL, Kenneth E. Green, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

317 F.3d 597

UNITED STATES of America, Plaintiff-Appellee, v. John A. CAMPBELL, Kenneth E. Green, Defendants-Appellants.

No. 00-4134.

No. 00-4583.

United States Court of Appeals, Sixth Circuit.

Argued: June 20, 2002.

Decided and Filed: January 28, 2003.

COPYRIGHT MATERIAL OMITTED

Kenneth L. Parker (argued and briefed), Assistant United States Attorney, Cincinnati, OH, for U.S.

Susan M. Damplo (argued and briefed), Ardsley, NY, for John A. Campbell.

Spiros P. Cocoves (argued and briefed), Toledo, OH, for Kenneth E. Green.

Before: BOGGS and BATCHELDER, Circuit Judges; STEEH, District Judge.^*

OPINION

STEEH, District Judge.

John A. Campbell's and Kenneth E. Green's consolidated appeals seek review of criminal judgments and commitments entered against them by the district court. Both appellants were convicted by a jury on May 31, 2000 under Count 1 of the February 17, 2000 Superseding Indictment (hereinafter "indictment") of conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846. The jury also found appellant Green guilty under Count 2 of the indictment of attempted possession with intent to distribute, in violation of 21 U.S.C. § 846, and appellant Campbell guilty under Count 5 of the indictment of possession with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). For the reasons that follow, we AFFIRM IN PART the judgment of the district court, and REMAND IN PART, for appropriate application of the supervised release portion of appellant Campbell's sentence according to the United States Sentencing Guidelines.

I.

On December 2, 1999, Brian Haggerty, a corporal with the Missouri State Highway Patrol, effected a traffic stop on a van driven by Michael Lynce, a former defendant in these proceedings. Haggerty's subsequent search of the vehicle turned up three suitcases, containing approximately 116 pounds of marijuana. Lynce was arrested and agreed to cooperate with law enforcement. During a post-arrest interview conducted at the station, Lynce told Drug Enforcement Agency (hereinafter "DEA") Special Agent Raymond Guijas that he was en route from California to deliver marijuana to a Kenneth Green at the "Underground," a nightclub located in Cincinnati. Special Agent Guijas testified that they then began preparing for a controlled delivery of the marijuana. DEA agents took Lynce and the marijuana to Cincinnati where Lynce contacted Green, as had been originally planned. Agents recorded the telephone calls between Green and Lynce. Audiotapes of various conversations Lynce had with Green prior to delivery were played at trial. Although much of Green's and Lynce's language was in code, Lynce testified at the trial that the conversations were about marijuana.

Lynce also testified at trial that he met Kenneth Green, whom he referred to as "Geezy," in Cincinnati several times prior to 1998, when he was "bodyguarding" for an Antonio Weathers. After that time, Lynce began making trips for Green, to California, to pick up marijuana for transport back to Cincinnati. At trial, Lynce testified that he made four trips to California for Green and that he served as Green's bodyguard. According to the testimony of DEA task force agent Thomas Catania, however, Lynce at one point estimated having made approximately eleven trips for Kenneth Green during the period from December 1998 to December 1999, transporting marijuana from the Ontario, California area to Cincinnati, Ohio. According to Agent Catania, Lynce had admitted transporting 780 pounds of marijuana, his largest load, just two weeks before his arrest. Lynce apparently revised his admissions later in the conversation, when he told Catania that he had made a total of nine runs during the one-year period, and that the most he had been paid for a load was $40,000. DEA Special Agent Brian Stine testified that Lynce advised authorities that he had made other drug deliveries to Green in the past, and that when Green was not available to accept shipments, Lynce took the marijuana to defendant John Campbell's residence located at 2017 Elm Street for Green.

Lynce met with DEA agents from the Cincinnati office, providing them with pager and cellular telephone contact numbers for Green, and cooperated with the agents' preparations for the controlled delivery of the marijuana. Tape recordings were made of conversations between Lynce and Green in which they agreed on a time and place for delivery. Surveillance was established at the nightclub prior to Lynce's arrival with the marijuana, and Lynce wore a microphone. Lynce ultimately delivered the marijuana, in suitcases, to Green's downtown nightclub on December 3, 1999.

After arriving at the nightclub, Lynce went inside the building and returned to his van with defendant John Campbell, who worked for Green at the nightclub. Lynce and Campbell took three pieces of luggage from the van into the business location. DEA agents then entered the building from the side and secured the area. Campbell's car, which at first he denied was his, was searched by the officers. Approximately 3.9 pounds of marijuana were found in the trunk.

Inside the building, the DEA agents announced the presence of law enforcement. According to agent Gary Peace, the smell of marijuana was present inside the building. While the agents were securing the first floor of the building, they heard loud noises in the kitchen. Agents found defendant Green in a dark area of the kitchen, from which they were able to call him out and secure an arrest. Campbell was also arrested at the nightclub.

A few days later, on December 7, 1999, a federal search warrant was executed by DEA agents at Campbell's apartment. Sabrina Ellis, Campbell's girlfriend, was at the apartment upon the agents' arrival. Ellis told agents that individuals had moved items from the downstairs apartment she shared with Campbell to an empty apartment upstairs. In Campbell's downstairs apartment, agents found an envelope addressed to Campbell with notations evidencing his participation in drug transactions. In the upstairs apartment, searched after the agents determined that it was vacant and received the building owner's permission, agents found a drug ledger, scales, shotgun shells, an envelope addressed to Campbell, and marijuana residue. Fingerprints on the drug ledger matched Green's fingerprints. Ellis testified that she recognized many names in the ledger as individuals with whom Green and Campbell had dealings. The ledger listed marijuana transactions with those and other individuals, and included a notation referring to an expenditure for a gun.

Campbell and Green appeal from final orders of the district court imposing criminal sentences upon the defendants dated September 7, 2000 and December 14, 2000. Both defendants filed timely notices of appeal.

II.

District Court's Application of 21 U.S.C. § 841(b)(1)(D)

In their first common assignment of error, appellants contend that the district court incorrectly applied 21 U.S.C. § 841(b)(1)(D) in sentencing them to two consecutive five-year terms of incarceration. This claim was not argued by defendant Campbell to the district court, so the district court's imposition of the maximum penalty under 21 U.S.C. § 841(b)(1)(D) with respect to Campbell is reviewed for plain error. United States v. Page, 232 F.3d 536, 543 (6th Cir.2000). Defendant Green advanced this argument in his sentencing memorandum, so review of Green's statutory construction claim will be conducted under the de novo standard. United States v. Quintero, 157 F.3d 1038, 1039 (6th Cir.1998).

Appellants contend that the sentences imposed by the district court were greater than the statutory maximum permitted under 21 U.S.C. § 841(b), as the jury did not determine either the quantity of marijuana involved or remuneration. Appellant Campbell asserts, and the government agrees, that the Sixth Circuit has yet to address the statutory maximum sentence for offenses involving an indeterminate amount of marijuana.

21 U.S.C. § 841(a) states:

Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally —

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance....

21 U.S.C. § 841(a). Marijuana is a Schedule I controlled substance. 21 U.S.C. § 812(c). 21 U.S.C. § 841(b) provides the available sentences for individuals who violate 21 U.S.C. § 841(a). 21 U.S.C. § 841(b)(1)(D) defines the sentence for cases dealing with "less than 50 kilograms of marihuana," and includes the sentence applicable to an individual with a prior felony drug conviction. 21 U.S.C. § 841(b)(1)(D).¹ On the other hand, 21 U.S.C. § 841(b)(4) states that "[n]otwithstanding paragraph (1)(D) of this subsection, any person who violates subsection (a) of this section by distributing a small amount of marihuana for no remuneration shall be treated as provided in section 844 of this title and section 3607 of Title 18." 21 U.S.C. § 841(b)(4). Section 844 of Title 21 addresses offenses involving simple possession, and provides for a maximum sentence of imprisonment of one year. 21 U.S.C. § 844.

Green was convicted under counts 1 and 2 of the indictment. Count 1 charged the defendants with conspiracy to "possess with intent to distribute and to distribute a Schedule I controlled substance, to wit; marijuana, in violation of the laws of the United States, 21 U.S.C. § 841(a)(1) and (b)(1)(B) ... [a]ll in violation of 21 U.S.C. § 846." Count 2 charged that defendant Green "did knowingly and intentionally, unlawfully attempt to possess with intent to distribute a Schedule I Controlled Substance: to wit, marijuana. In violation of 21 U.S.C. § 846." Campbell was convicted under counts 1 and 5 of the indictment. Count 1 is set forth above; Count 5 charged that defendant Campbell "did knowingly, intentionally, unlawfully possess with intent to...