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United States v. Campbell

United States District Court, E.D. Kentucky, Central Division, Frankfort

August 4, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
BRANDON NELSON CAMPBELL, Defendant.

          MEMORANDUM OPINION & ORDER

          Gregory F. Van Tatenhove United States District Judge

         Calculating a defendant's correct Sentencing Guidelines range is a vital part of the federal sentencing process, and this case underscores why. Defendant Brandon Campbell was found guilty by jury of unlawfully distributing heroin and fentanyl, and he has two prior convictions. The parties dispute whether the career offender enhancement set forth in United States Sentencing Guidelines § 4B1.1 applies in light of those prior convictions. If Campbell does not receive the career offender enhancement, he faces a Guidelines range of 15 to 21 months. But if one or both of the prior convictions are predicate offenses under the Guidelines, his range soars to 262 to 327 months. This represents a greater than twenty-five year swing in the recommended sentence.

         The underlying offense in question is Campbell's 2013 third degree robbery conviction under Ohio Revised Code § 2911.02(A)(3). Whether this conviction constitutes a “crime of violence” for purposes of the career offender enhancement is imprecise and requires wading through decisions addressing both the Guidelines' language and the Armed Career Criminal Act. Nevertheless, the Court has carefully considered the existing law and now concludes a third degree robbery conviction under Ohio Revised Code § 2911.02(A)(3) does constitute a crime of violence under the Guidelines. Accordingly, the Court VACATES its oral finding on the matter and OVERRULES the Defendant's objection to the presentence investigation report.

         I

         Last year, Brandon Campbell was found guilty of distributing both heroin and fentanyl in violation of 21 U.S.C. § 841(a)(1) during a trial by jury. Following the guilty verdict, the United States Probation Office commenced preparation of Mr. Campbell's presentence investigation report. As part of its investigation, the Probation Office identified two prior convictions. First, Campbell was convicted of third degree robbery in violation of Ohio Revised Code § 2911.02(A)(3) in the Cuyahoga County, Ohio, Court of Common Pleas in 2013. Second, Campbell was convicted of conspiracy to possess with intent to distribute a quantity of cocaine in the Western District of Texas, El Paso division in 2012. Neither party disputes that Campbell's Texas cocaine conviction is a predicate offense for purposes of the career offender enhancement under United States Sentencing Guidelines § 4B1.1. But Campbell's Ohio robbery conviction presents a closer question.

         The Probation Office determined the robbery conviction did constitute a “crime of violence” under U.S.S.G. § 4B1.2, and the Government filed a sentencing memorandum in support of that position. [See R. 154.] Accordingly, both the Probation Office and the Government believe the career offender enhancement should apply to dramatically increase Campbell's Guidelines base offense level and criminal history category. Defense counsel, however, objects to the application of the enhancement, arguing the Ohio Revised Code § 2911.02(A)(3) conviction does not qualify as a crime of violence under the Guidelines. [R. 155.]

         The Court convened with the parties on April 13, 2017, for Mr. Campbell's sentencing proceeding, and the career offender issue quickly revealed itself as a matter of utmost importance. The Court heard oral argument from both sides and recessed twice to further consider the issue in chambers. After hearing the parties' arguments and considering certain case law, the Court had reason to doubt Campbell's § 2911.02(A)(3) conviction sufficiently qualified as a crime of violence. Consequently, the Court sustained the Defendant's objection to the presentence investigation report and then stated its intent to issue a written opinion on the matter clarifying its ruling. At the Government's request, the remainder of the sentencing proceeding was continued to a later date, with no judgment imposed.

         Since that date, the Court has spent significant time researching relevant Sixth Circuit case law as well as district court opinions from within and outside the circuit. Based on information not presented to the Court during the first stage of the sentencing proceeding, the Court now concludes it erred in sustaining the Defendant's objection to the career offender enhancement. For the reasons explained below, the application of the enhancement is appropriate and the objection should be overruled.

         II

         A defendant is considered a career offender under the United States Sentencing Guidelines if: “(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). If a defendant is subject to this enhancement, he receives a significant increase to his base offense level and automatically becomes a criminal history category VI for purposes of his advisory Guidelines range calculation. U.S.S.G. § 4B1.1(b). Campbell's third degree robbery conviction is not a controlled substance offense, so to trigger the enhancement, the offense must be a “crime of violence.” The 2016 Sentencing Guidelines Manual sets forth a two-prong definition for “crime of violence”:

(a) The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

         U.S.S.G. § 4B1.2(a).[1] The first clause is often known as the “use of force” clause or the “elements” clause, and the second clause is commonly called the “enumerated offense” clause.To be considered a crime of violence for purposes of the career offender enhancement, a prior conviction must satisfy at least one of those two clauses. After ...


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