U.S. v. Campbell

• Decision Date: 20 August 2001
• Docket Number: PLAINTIFF-APPELLEE,No. 01-1485,DEFENDANT-APPELLANT,01-1485
• Citation: 270 F.3d 702
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA,, v. KENNETH RAY CAMPBELL, Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 702

270 F.3d 702 (8th Cir. 2001)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. KENNETH RAY CAMPBELL, DEFENDANT-APPELLANT.

No. 01-1485

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: August 20, 2001

Filed: October 29, 2001

Appeal from the United States District Court for the District of Minnesota.

Before Bye, Lay, and John R. Gibson, Circuit Judges.

Lay, Circuit Judge

Kenneth Ray Campbell appeals his conviction of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) & 924(e). Campbell argues (1) the prosecutor impermissibly exercised a peremptory challenge against an African- American juror in violation of Batson v. Kentucky, 476 U.S. 79 (1986), and (2) the district court's¹ sentence to a term of imprisonment in excess of ten years based upon the violent nature of Campbell's previous felonies violated Apprendi v. New Jersey, 530 U.S. 466 (2000). Campbell argues the indictment did not allege and the jury was not charged with finding beyond a reasonable doubt that he had been convicted of three or more violent felonies committed on different occasions. We affirm.

I. Facts

On January 29, 2000, police were called to 2934 Cedar Avenue South, Apartment 104, Minneapolis, Minnesota, to investigate a report of property damage. Lillie Jones told the responding officers that a bullet had passed through the ceiling of her apartment and struck a coffee table in the middle of the living room. There was a hole in the ceiling above the coffee table and a spent slug was located on a window sill. Police proceeded to Apartment 204, directly above Jones' apartment, where they encountered Campbell. Although he denied knowing anything about a gun being discharged, Campbell was subsequently arrested. Loretta Baker, identified by Campbell as his wife, was also present in Apartment 204. She denied knowing anything about the discharge of a gun and was taken into custody. Upon a protective sweep of Campbell's apartment, police noticed a hole in the living room floor. When asked about the hole, Campbell suggested that it was a cigarette burn.

Several witnesses in the building reported hearing a gunshot and seeing Campbell exit his apartment in the direction of the building's rear stairwell. A search of the stairwell by police yielded the firearm involved in this case--an EAA, Witness P-series.45 caliber pistol, serial number AE85843. A later search by police of Campbell's apartment resulted in the discovery of several magazines about firearms, a pistol case matching the serial number of the recovered gun, a live.45 caliber round, and an undeveloped roll of film. When developed, two photographs revealed the defendant holding the recovered gun.

Campbell was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) & 924(e). Although Campbell did not testify at trial, Loretta Baker did testify. Baker was familiar with the recovered gun, had fired it, had her picture taken with it, and had purchased ammunition for it. However, Baker claimed the firearm was Campbell's and that the discharge incident was his doing.

II. Discussion

A. The Batson Challenge

When the jury venire was called, three of the thirty-two potential jurors were African-Americans. The Government successfully moved to strike one of the African-American jurors, Jestin Vanbeek, for cause.² The prosecutor also struck a second African-American juror, Darrell Smith, through a peremptory challenge.

In response to questions by the district court, Smith indicated that he had a degree in criminal justice, that he had formerly worked for the Minnesota Department of Corrections as an institutional parole officer as well as a case worker and counselor in halfway houses. He was asked whether having worked for the department of corrections would make it difficult to participate in this case in a fair and impartial manner. Smith indicated that, although he had worked for the state, he had a "propensity to work on behalf of the inmate or the defendant or the criminal to make sure he gets his rights." He told the court he had been called as a character witness at a criminal trial on behalf of an inmate at the correctional facility where he worked as a case worker. He described himself as an advocate for the inmates while he worked at the correctional facility in his capacity as a parole officer. Smith further stated that, now being employed by the St. Paul School District, he would have no reason to be swayed by either the prosecution or the defense. The district court denied the Government's motion to remove Smith for cause, stating: "If you want to get rid of him you'll have to use one of your strikes."

Campbell objected to the Government's exercise of its peremptory strike of Smith, arguing it was motivated by Smith's race in violation of Batson. In response, the prosecutor argued Campbell had failed to make an initial showing of discrimination and Smith's race had nothing to do with his decision to strike him. He explained that Smith's self-identification as an advocate for inmates and criminal defendants, his position that part of his job (as a parole officer) was to ensure inmates' rights were protected, and his propensity to work on behalf of defendants and inmates were sufficient race-neutral reasons for the exercise of its peremptory challenge. The Government expressed a general concern that Smith would not be able to be fair and impartial to its case. Furthermore, the Government noted it had exercised a peremptory challenge to Mr. Groebner, a white male, on similar grounds.³ The district court denied defendant's challenge.⁴

In Batson, the Supreme Court held that a prosecutor is prohibited from exercising peremptory challenges based upon the race of a potential juror. 476 U.S. at 89. In order to prevail, the party challenging a peremptory challenge must first make a prima facie showing of racial discrimination. Purkett v. Elem, 514 U.S. 765, 767 (1995). "This can be done by showing circumstances that give rise to a reasonable inference of racial discrimination." United States v. Hill, 249 F.3d 707, 714 (8th Cir. 2001). Once this is done, the burden shifts to the striking party to offer a race-neutral explanation. Purkett, 514 U.S. at 767; United States v. Jones, 245 F.3d 990, 992 (8th Cir. 2001). If such a race-neutral explanation is proffered, the trial court must determine whether the prosecutor's explanation is mere pretext. Purkett, 514 U.S. at 767; Hill 249 F.3d at 714. We review for clear error the district court's ruling. Jones, 245 F.3d at 992.

While it is possible, and in fact quite likely, that Smith's statements were meant to demonstrate to the district court his impartiality given his previous employment in the criminal justice system, the prosecutor's reasons are race-neutral and reasonable. Furthermore, the prosecutor exercised a peremptory challenge to Mr. Groebner, a similarly situated white venire member. As we have previously observed, the district court is in the best position to evaluate the truthfulness of the prosecutor's asserted explanations, and Campbell has not shown the district court clearly erred in rejecting his challenge to the Government's peremptory strike. See Hill, 249 F.3d at 712-14 (juror's participation in church activities during leisure time was sufficient race- neutral explanation when defendant did not argue that similarly situated white jurors were not challenged); United States v. Wilson, 867 F.2d 486, 487 (8th Cir. 1989), cert. denied, 493 U.S. 827 (1989) (peremptory strike of juvenile court social worker with significant experience within criminal justice system was race neutral).

B. Sentencing

Following a jury verdict of guilty, the Government filed a Notice to Seek Enhanced Sentence, indicating that it sought a higher sentence pursuant to 18 U.S.C. § 924(e), and United States Sentencing Guidelines § 4B1.4.⁵ The enhancement requires a statutorily mandated minimum sentence of fifteen years imprisonment (and a guideline mandated minimum of 235 months) rather than the statutorily mandated maximum sentence of ten years imprisonment under 18 U.S.C. § 922(g). The district court adopted the Government's position and sentenced defendant to the lower end of the range mandated by the Sentencing Guidelines, nineteen years and five months imprisonment.

Campbell argues that his sentence was unjustified because the indictment did not allege that any of his prior convictions were for violent felonies or serious drug offenses. Thus, his argument continues, he can only be sentenced up to a maximum of ten years imprisonment rather than the enhanced penalty prescribed by 18 U.S.C. § 924(e)(1).⁶ We review the trial court's factual findings in support of a sentencing enhancement for clear error and its application of the sentencing guidelines to the facts de novo. United States v. O'Dell, 204 F.3d 829 836 (8th Cir. 2000); United States v. Molina, 172 F.3d 1048, 1058 (8th Cir. 1999); United States v. Elliott, 89 F.3d 1360, 1370 (8th Cir. 1996).

Campbell argues that because the enhanced penalty under § 924(e)(1) increased his sentence to one greater than the statutory maximum proscribed for the base offense of being a felon in possession of a firearm, the Supreme Court decision in Apprendi requires the nature of those felonies to be pled in the indictment and proven to a jury if he is to be sentenced thereunder. Campbell contends that post-Apprendi, 18 U.S.C. § 924(e) is a substantive offense, distinct from the offense set out in § 922(g)(1). We hold this is a misreading of the Court's decision in Apprendi.

In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the defendant had been convicted of illegally reentering the United States after having been previously deported following conviction of aggravated felonies pursuant to 8 U.S.C. § 1326(b)(2). Almendarez-Torres objected to his sentence of eighty-five months imprisonment,...