U.S. v. Campbell
| Decision Date | 22 May 1992 |
| Docket Number | No. 1053,D,1053 |
| Citation | 967 F.2d 20 |
| Parties | UNITED STATES of America, Appellee, v. David E. CAMPBELL, also known as Anthony Jarrett Alton, also known as nfn Pecos, Defendant-Appellant. ocket 91-1624. |
| Court | U.S. Court of Appeals — Second Circuit |
Sarah A. Chambers, Asst. Federal Public Defender, New Haven, Conn. (Thomas G. Dennis, Federal Public Defender, of counsel) for defendant-appellant.
Althea E. Seaborn, Asst. U.S. Atty., District of Connecticut, Bridgeport, Conn. (Albert S. Dabrowski, U.S. Atty., District of Connecticut, New Haven Conn., of counsel) for appellee.
Before: OAKES, Chief Judge, WALKER, Circuit Judge, and POLLACK, District Judge. *
The United States Sentencing Guidelines (the "Guidelines") provide an elaborate framework for determining the proper sentence to be imposed in federal criminal cases. The question on this appeal is what procedures district judges must follow in deciding how much to depart from that framework.
On July 23, 1991, defendant David E. Campbell pled guilty to one count of illegal re-entry by an alien deported as an aggravated felon, in violation of 8 U.S.C. § 1326. The applicable guideline range for that crime for a defendant with Campbell's criminal history is 15-21 months. The district court, however, sentenced Campbell to 54 months imprisonment--an upward departure of some 33 months. Defendant appeals that sentence on two grounds. First, he contends that the district court improperly "double counted" certain factors in determining the extent of the upward departure. Second, defendant urges that, in any event, the more than two-fold departure from the guidelines range was unreasonable.
Defendant Campbell, a citizen of Jamaica, first entered the United States in May of 1982, as a lawful permanent resident. Campbell settled in Connecticut, but soon ran afoul of the law. During 1984, Campbell went on a crime spree that included attempted murder, selling controlled substances, possession of a handgun, and interfering with a police officer. Connecticut police arrested Campbell in October of 1984, and the State brought three separate indictments against him. The first indictment charged one count of attempted murder. The second charged a single count of sale of a controlled substance. The third charged two counts of sale of a controlled substance as well as one count of unlawful possession of a handgun and another of interfering with a police officer.
On May 24, 1985, Campbell pled guilty to all three indictments in Bridgeport Superior Court in Connecticut. The court sentenced Campbell to 10 years imprisonment on the attempted murder indictment, and to lesser included sentences on the other two indictments. The court suspended the sentence after five years.
Campbell served his time on the attempted murder charge until April 4, 1988, when the Immigration and Naturalization Service (INS) deported Campbell to Jamaica pursuant to 8 U.S.C. § 1251(a)(2)(A)(iii) (West Supp.1992), which authorizes the INS to deport lawfully admitted aliens subsequently convicted of aggravated felonies.
On October 1, 1989 Campbell re-entered the United States, carrying a passport and green card bearing the name Alton Jarrett. Campbell did not file a formal application for permission to re-enter, as is required for felons deported following arrest. 8 U.S.C. § 1326(a)(2)(A).
Upon his return to the United States, Campbell promptly resumed his life of crime in Connecticut. On November 11, 1989, Connecticut police arrested Campbell and charged him with selling a controlled substance. While those charges were pending, Connecticut police arrested Campbell in February of 1991 for a robbery committed in December of 1990.
On June 13, 1991 the Connecticut court sentenced Campbell to 20 years in prison on the November 11, 1989 narcotics count, with the final year of the prison term suspended, to be followed by 5 years probation. Campbell, later pled guilty on the December 1990 robbery, in exchange for a promised 15 year term to be served concurrently with the 19 year term on the narcotics count.
While these state proceedings were underway, the INS learned of Campbell's presence in the United States and initiated criminal proceedings against him. On March 13, 1991 a federal grand jury in Connecticut returned a one count indictment charging Campbell with unlawful presence in the United States. On July 23, 1991, Campbell pled guilty to that one count indictment. As part of the plea agreement, the government agreed to take no position on whether an upward departure was appropriate.
Following the plea, the probation department prepared a presentence report and Judge Cabranes held a sentencing hearing on September 19, 1991. The district court first recounted the sentencing calculations contained in the presentence report. The presentence report stated that under § 4A1.1 of the Sentencing Guidelines, defendant's past history of crime amounted to a total of nine criminal history points, which translates to a criminal history category of IV. The presentence report also calculated the offense level under § 2L1.2. Section 2L1.2(a) of the November 1, 1990 Guidelines (the Guidelines in effect at sentence and to which all references are made unless otherwise indicated) provides a base offense level of 8. The presentence report recommended enhancing this by 4 levels under § 2L1.2(b)(1) since Campbell had previously been deported after a felony conviction. The report also recommended reducing the offense level by two to reflect Campbell's acceptance of responsibility, yielding an offense level of 10. See § 3E1.1. For a defendant with a criminal history category of IV and an offense level of 10, the Guidelines provide a sentencing range of 15-21 months. Finally, the pre- sentence report identified two possible grounds for departure from that range. First, the report indicated that an increase in Campbell's criminal history score might be warranted, since the guidelines artificially treated the three May 24, 1985 convictions as a single incident. Second, the report indicated that under § 2L1.2 application note three, an upward departure might be warranted since Campbell's deportation followed his conviction for an aggravated felony.
The district court agreed with the recommendations of the pre-sentence report, and increased Campbell's sentence in two separate steps. First, the district court increased Campbell's criminal history category from IV to V pursuant to § 4A1.3. This increased the sentencing range to 21-27 months. Then, the district court determined, pursuant to § 2L1.2 application note three, to depart further since Campbell had previously been deported for committing an aggravated felony. The court settled on a sentence of 54 months to be served upon the completion of Campbell's nineteen year state sentence. This 54 month sentence falls near the high end of the range at offense level 17 (46-57 months) or the low end of the range at offense level 18 (51-63 months). The district court did not consider whether some sentence in the ranges between offense levels 10 and 17 would have been sufficient. This appeal followed.
Campbell does not contest the district court's decision to depart "horizontally", moving across the Guidelines grid from criminal history category IV to category V. Campbell finds two errors, however, in the second aspect of the district court's departure--from the 21-27 month range to 54 months. First, Campbell asserts that it was improper "double counting" for the district court to depart upward on the ground that the May 1985 convictions were for aggravated felonies, since the court had already relied on that fact in making the horizontal departure from category IV to category V. Second, Campbell asserts that the extent of the second departure was unreasonable, since the district court failed to consider whether a sentence between 27 and 54 months would be appropriate. We address these arguments in turn.
Campbell asserts that the district court erred in departing upward twice since both the § 4A1.3 and § 2L1.2 application note three departures were based, in part, on the fact that Campbell had previously been convicted of an aggravated felony.
Section 4A1.3 authorizes the district court to adjust a defendant's criminal history category where "the criminal history category does not adequately reflect the seriousness of the defendant's past criminal conduct or the likelihood that the defendant will commit other crimes." Id. Here, the district court concluded that both these requirements were met. While the record is not entirely clear, the parties agree that the district court based this determination, at least in part, on the aggravated nature of the crimes underlying the May 24, 1985 convictions. Campbell does not challenge this phase of the departure.
Section 2L1.2 application note three instructs that "[i]n the case of a defendant previously deported after sustaining a conviction for an aggravated felony as defined in 8 U.S.C. § 1101(a), or for any other violent felony, an upward departure may be warranted." Campbell concedes that his May 1985 convictions for attempted murder and sale of controlled substances meet the statutory definition. The only dispute is whether, once the district court had considered these prior convictions in making the § 4A1.3 departure, it could consider them again in making the § 2L1.2 departure.
The "double counting" objection in this case is unusual in that it involves a claim that the Guidelines forbid basing two separate upward departures on the same factor. Most of our double counting cases have involved a situation where the district court considers a factor both in setting the initial Guidelines range and in choosing to depart from that range. In that case, the law is clear. The Guidelines limit upward departures to where the court "finds that...
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