USA. v. Campbell

• Decision Date: 02 April 2001
• Docket Number: No. 99-4539,99-4539
• Citation: 259 F.3d 293
• Parties: (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GERALD LYNN CAMPBELL,Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 293

259 F.3d 293 (4th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GERALD LYNN CAMPBELL,Defendant-Appellant.

No. 99-4539

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: April 2, 2001

Decided: August 1, 2001

Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, District Judge.

(CR-98-66)

COUNSEL ARGUED: Margaret McLeod Cain, Charlottesville, Virginia, for Appellant. Ray B. Fitzgerald, Jr., Assistant United States Attorney, Charlottesville, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney, Charlottesville, Virginia, for Appellee.

Before MOTZ and GREGORY, Circuit Judges, and Frederic N. SMALKIN, United States District Judge for the District of Maryland, sitting by designation.

Vacated and remanded by published opinion. Judge Motz wrote the opinion, in which Judge Gregory and Judge Smalkin joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

This case turns on a question of first impression in this circuit, namely whether infliction of "bodily injury" and use of a deadly or dangerous weapon in 18 U.S.C. S 111(b) (1994) constitute offense elements. We hold that they do and, for the reasons that follow, reverse Gerald Lynn Campbell's sentence and remand for resentencing.

I.

On October 11, 1998, federal marshals transported Campbell, a federal prisoner, from the Augusta Correctional Center in Staunton, Virginia to the Albemarle-Charlottesville Regional Jail where he was to be incarcerated until his transfer to another federal facility. That night, while being served dinner, Campbell forced his way out of his cell. Officer Shannon Button ordered Campbell to return to his cell, but he refused.

As Campbell advanced, Button attempted to protect herself by firing pepper spray at him, but her spray cannister failed to discharge. Campbell and Button then engaged in a scuffle during which Campbell removed the pepper spray from Button's grasp and tried to spray her, but again the spray cannister did not discharge. Campbell then hit Button, causing her glasses to break. A nearby correctional officer saw the altercation and called for help. When other correctional officers arrived on the scene to assist Button, Campbell attempted to avoid submission by holding Button as a shield. Campbell also tried to pepper spray the assisting officers; they responded by spraying Campbell with pepper spray and ultimately subdued him.

As a result of these events, a federal grand jury returned an indictment charging Campbell with assault on a federal officer, in violation of 18 U.S.C. SS 111(a)(1) and 111(b).¹ Specifically, the indictment charged:

That on or about October 11, 1998 . . . Gerald Lynn Campbell, did knowingly and forcibly and by means of a dangerous weapon, assault, oppose, impede, intimidate or interfere with Shannon Button, a correctional officer at the Charlottesville-Ablemarle Regional Jail, while Button was engaged in . . . the performance of her official duties . . . .

(Emphasis added). Although S 111(b) identifies infliction of "bodily injury," in addition to use of a dangerous weapon, as a possible aggravating factor, that factor was not mentioned in Campbell's indictment.

Campbell's trial began on March 25, 1999. During trial, the government argued that pepper spray was a dangerous weapon within the meaning of S 111(b). At the end of the trial, the district court instructed the jury that, with respect to the count of assault under 18 U.S.C. S 111, two verdicts were possible. According to the district court's instructions, the jury could either "find the defendant guilty or not guilty of the crime of assault without a deadly weapon, or [it could] indicate that [Campbell] used a deadly weapon if [it found] beyond a reasonable doubt that he did." (Emphasis added). The district court informed the jury that "for sentencing purposes, it's more serious if you use a deadly weapon." The verdict form permitted the jury to indicate whether it found Campbell not guilty of assault, guilty of assault with a dangerous weapon, or guilty of assault without a dangerous weapon. At the conclusion of the trial, the jury found Campbell guilty of assault, but not guilty of assault with a dangerous weapon. On the verdict form, the jury expressly indicated its finding that Campbell had not used a dangerous weapon in committing the assault on Button.

Prior to sentencing, on April 5, 1999, the government filed a notice of enhanced penalty pursuant to 18 U.S.C. S 3559(c)(4) (1994), informing Campbell of its intent to pursue a penalty of life imprisonment. The notice asserted that Campbell's S 111 conviction constituted a "serious violent felony" and listed several of Campbell's prior convictions, which the government claimed amounted to first and second "strikes" pursuant to S 3559.

Campbell's sentencing hearing took place on June 29, 1999. At the hearing, Campbell's counsel and the prosecutor hotly debated whether, in light of the jury's finding that Campbell did not use a dangerous weapon, Campbell was eligible for the maximum ten-year sentence authorized by S 111(b) for assaults involving bodily injury or use of a dangerous weapon. The district court determined that infliction of bodily injury and use of a dangerous weapon within the meaning of S 111(b) were sentencing factors, not elements of a separate crime that needed to be charged in the indictment.

Based on the trial testimony, as well as additional testimony from Button as to the extent of her injuries, the district court found that (i) Campbell did not use a dangerous weapon, (ii) Campbell's assault inflicted bodily injury on Button, thereby making Campbell eligible for up to ten years imprisonment under S 111(b), but (iii) Campbell's assault did not inflict serious bodily injury on Button, making Campbell ineligible for a sentencing enhancement under USSG S 2A2.2.² The district court then sentenced Campbell under the Sentencing Guideline for "Obstructing or Impeding Officers," which carries a base offense level of 6, and applied a three-level enhancement for conduct involving "physical contact." USSGS 2A2.4(b)(1). The resulting sentence was the ten-year maximum sentence authorized by S 111(b).

The district court further concluded that this offense constituted Campbell's third serious violent felony pursuant toS 3559, and sentenced him to life imprisonment. Campbell now appeals, maintaining that the district court erred in sentencing him.

II.

We first consider whether infliction of bodily injury and use of a deadly or dangerous weapon in S 111(b) constitute sentencing factors or offense elements.

Section 111 provides in relevant part:

(a) In general. Whoever . . . forcibly assaults, resists, opposes, impedes, intimidates or interferes with[any designated federal officer] while engaged in . . . the performance of official duties . . . shall, where the acts in violation of this section constitute only simple assault, be . . . imprisoned not more than one year, . . . and in all other cases, be. . . imprisoned not more than three years . . . .

(b) Enhanced Penalty. Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be . . . imprisoned not more than ten years . . . .

Thus, by its own terms, S 111 provides maximum penalties of (i) one year imprisonment for simple assault, or an assault not involving physical contact,³ (ii) ten years imprisonment for assault involving use of a dangerous or deadly weapon or infliction of bodily injury, and (iii) three years imprisonment for all other assaults. See United States v. Ramirez, 233 F.3d 318, 321-22 (5th Cir. 2000); United States v. Chestaro, 197 F.3d 600, 606 (2nd Cir. 1999).

Two years ago, in Jones v. United States, 526 U.S. 227, 229 (1999), the Supreme Court held that "serious bodily injury" constituted an offense element under the federal carjacking statute, 18 U.S.C. S 2119 (1988 ed. Supp. V). Like S 111, the carjacking statute at issue in Jones contained subsections, which increased a defendant's penalty in proportion to the aggravated nature of the crime. See 18 U.S.C. S 2119(1)-(3). Under subsection 2119(1), the offense of simple carjacking carried a maximum sentence of 15 years under subsection 2119(2), carjacking resulting in "serious bodily injury" carried a maximum sentence of 25 years; and under subsection 2119(3), carjacking resulting in death yielded a sentence of up to life imprisonment.

The Jones Court acknowledged that the "look" of the carjacking statute suggested that it established a single offense with various sentencing factors, including "serious bodily injury," but it determined that closer analysis belied that conclusion. Jones, 526 U.S. at 233. The Court pointed out that, with the exception of subsection (1), S 2119's other subsections "provide[d] for steeply higher penalties" and conditioned those penalties "on further facts," such as serious bodily injury "that seem quite as important as the elements in the principal paragraph." Id.

The Jones Court then examined federal and state legislative practice, noting that "statutory drafting occurs against a backdrop . . . of traditional treatment of certain categories of important facts, like the degree of injury to victims of crime, in relation to particular crimes." Id. at 234. Finding that Congress modeled the federal carjacking statute on various robbery statutes, many of which define "serious bodily injury" as an offense element, the Court concluded that "carjacking is a type of robbery, and serious bodily injury has traditionally been treated . . . as defining an element of the offense of aggravated robbery." Id. at 235. To further support its conclusion, the Court cited various state robbery laws under which serious...