Campbell v. United States

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 20, 2004
• Docket: 03-1178
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Campbell v. United States No. 03-1178 ELECTRONIC CITATION: 2004 FED App. 0115P (6th Cir.) File Name: 04a0115p.06 UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. ON BRIEF: Dennis J. Clark, PLUNKETT & COONEY, Detroit, Michigan, for Appellant. Michael R. UNITED STATES COURT OF APPEALS Mueller, UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. FOR THE SIXTH CIRCUIT _________________ _________________

ROBERT CAMPBELL, X OPINION Petitioner-Appellant, - _________________ - - No. 03-1178 RONALD LEE GILMAN, Circuit Judge. Robert Campbell v. - appeals from the district court’s denial of his post-conviction > motion to vacate his sentence. For the reasons set forth , below, we AFFIRM the judgment of the district court. UNITED STATES OF AMERICA , - Respondent-Appellee. - I. BACKGROUND N Appeal from the United States District Court After two mistrials as a result of hung juries, a third grand for the Eastern District of Michigan at Detroit. jury indicted Campbell on the following three counts: No. 01-73211—Arthur J. Tarnow, District Judge. (1) conspiracy to possess controlled substances with the intent to distribute and conspiracy to actually distribute the Argued: March 18, 2004 c o n t r o l l ed s u b s t a n c e s , a l l in v io la tio n o f 21 U.S.C. §§ 841(a)(1) and 846; (2) aiding and abetting the Decided and Filed: April 20, 2004 possession of cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (3) aiding Before: COLE and GILMAN, Circuit Judges; and abetting the possession of heroin with the intent to SCHWARZER, Senior District Judge.* distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In July of 1998, a jury found Campbell guilty _________________ on all counts. The district court sentenced Campbell to 324 months of imprisonment and 5 years of supervised release. COUNSEL Campbell appealed, alleging numerous errors. In October ARGUED: Dennis J. Clark, PLUNKETT & COONEY, of 2000, this court issued an amended opinion that affirmed Detroit, Michigan, for Appellant. Michael R. Mueller, his conviction and sentence by a 2 to 1 vote, with the dissent favoring a new trial because of the alleged prosecutorial misconduct that occurred during closing argument. * The Honorable William W Schwarzer, Senior United States District Judge for the Northern District of California, sitting by designation.

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Campbell petitioned to vacate his sentence pursuant to 1. Ineffectiveness based upon alleged Speedy Trial Act 28 U.S.C. § 2255 in August of 2001. The case was referred violation to a magistrate judge, who issued a 30-page Report and Recommendation (R&R) concluding that the motion should Campbell first argues that the district court erred in denying be denied. Over Campbell’s objections, the district court his claim that his counsel rendered ineffective assistance by adopted the R&R. Campbell then applied for a certificate of not moving for a dismissal of the indictment based upon appealability as to nine issues, all of which the district court alleged violations of the Speedy Trial Act. 18 U.S.C. certified. In January of 2003, Campbell filed a timely notice §§ 3161-74. The Act requires that a criminal defendant be of appeal. brought to trial within 70 days after the filing of an indictment or an arraignment, whichever is later. 18 U.S.C. § 3161(c)(1). II. ANALYSIS A retrial that follows a mistrial must start “within 70 days from the date the action occasioning the retrial becomes final A. Ineffective-assistance-of-counsel claims . . . .” 18 U.S.C. § 3161(e). If a defendant is not brought to trial within 70 days, taking into account excludable time Campbell asserts numerous ineffective-assistance-of- periods under the Act, the district court is obligated to dismiss counsel claims on appeal. To prevail on these claims, he the indictment on the defendant’s motion. 18 U.S.C. must establish that (1) his “counsel’s performance fell below § 3162(a)(2); United States v. Jenkins, 92 F.3d 430, 438 (6th an objective standard of reasonableness, and (2) there is a Cir. 1996). The dismissal may be either with or without reasonable probability that, but for the deficiency, the prejudice. Id. outcome of the proceedings would have been different.” Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003). Campbell alleges the following three violations of the “The objective standard of reasonableness is a highly Speedy Trial Act: (1) 83 days elapsed between the end of his deferential one and includes a strong presumption that first trial and the start of his second, (2) approximately 157 counsel's conduct falls within the wide range of reasonable days elapsed between the second mistrial and the dismissal of professional assistance.” Mason v. Mitchell, 320 F.3d 604, the second indictment, and (3) 78 days elapsed between the 616-17 (6th Cir. 2003) (quotation marks omitted). A dismissal of the second indictment and Campbell’s “reasonable probability” has been defined by the Supreme arraignment on the third superseding indictment. The Court as “a probability sufficient to undermine confidence in magistrate judge’s R&R concludes that even if violations of the outcome.” Strickland v. Washington, 466 U.S. 668, 694 the Speedy Trial Act did occur, Campbell cannot demonstrate (1984). that he was prejudiced as required by Strickland. For the reasons that follow, we agree. When deciding ineffective-assistance claims, courts need not address both components of the inquiry “if the defendant In his brief, Campbell asserts that the alleged violations of makes an insufficient showing on one.” Id. at 697. “If it is the Speedy Trial Act prejudiced him, but he provides little easier to dispose of an ineffectiveness claim on the ground of explanation and no authority to support his contentions. lack of sufficient prejudice, which we expect will often be so, Campbell says that the prejudice “is obvious” and that “there that course should be followed.” Id. These claims, as part of clearly was prejudice suffered by Campbell.” But he does not Campbell’s motion to vacate his sentence under 28 U.S.C. allege any specific prejudice, such as a witness becoming § 2255, are reviewed de novo. Griffin, 330 F.3d at 736. unavailable. No. 03-1178 Campbell v. United States 5 6 Campbell v. United States No. 03-1178

Under the Speedy Trial Act, courts must consider the departure at sentencing based upon Campbell’s crime-free following three factors when determining whether to dismiss post-offense conduct and based upon the disproportionality an indictment with or without prejudice: “[1] the seriousness between his sentence and those of his codefendants. Neither of the offense; [2] the facts and circumstances of the case post-offense behavior nor disproportionality, however, is which led to the dismissal; and [3] the impact of a mentioned in the Sentencing Guidelines as a basis for reprosecution on the administration of [the Act] and on the departure. U.S. Sentencing Guidelines §§ 5K2.1-.21; see administration of justice.” 18 U.S.C. § 3162(a)(1). As Koon v. United States, 518 U.S. 81, 96 (1996) (noting that a explained in the R&R, “[e]ach of these factors would have sentencing court “must bear in mind the [Sentencing] counseled a dismissal without prejudice” in Campbell’s case: Commission’s expectation that departures based on grounds not mentioned in the Guidelines will be highly infrequent”). Defendant was charged with involvement [in] an extensive, serious drug distribution conspiracy, for which Under the Sentencing Guidelines, the sentencing court may he was sentenced to nearly 30 years’ imprisonment. As impose a sentence below the guideline range where a to the second factor, the delays in defendant’s case were mitigating circumstance exists “of a kind, or to a degree, not not extensive and were occasioned in part by the adequately taken into consideration by the Sentencing complexity of the procedural issues involved, including Commission in formulating the guidelines that should result two previous hung juries and a reindictment because of in a sentence different from that described.” U.S. Sentencing an improperly constituted grand jury. Further, there is no Guidelines Manual § 5K2.0 (quotation marks omitted). The evidence of bad faith or any attempt to take advantage of R&R and the government both note that neither post-offense the delay on the part of the prosecution. Finally, as to the behavior nor disproportionality is mentioned in the third factor, defendant does not allege that he suffered Sentencing Guidelines as a basis for departure. See U.S. any actual prejudice as a result of the delay, and there is Sentencing Guidelines Manual § 5H1.1-.12 (listing “certain no allegation that the government engaged in any offender characteristics” relevant “to the determination of improper behavior which must be deterred in order to whether a sentence should be outside the applicable guideline insure compliance with the Act. In these circumstances, range”). any dismissal under the Act would have been without prejudice. Campbell argues, however, that his lack of involvement in drug activity or other criminal conduct since his arrest rises to We have no basis to fault the magistrate judge’s analysis. the level of “extraordinary post-offense behavior.” But as this Because Campbell cannot show that he was prejudiced by his court noted in United States v. Biehl, trial counsel’s failure to request dismissal for the alleged violations of the Speedy Trial Act, we affirm the district [s]ome degree of presentence rehabilitation is to be court’s denial of relief to Campbell on this claim. expected from a penitent defendant, whether due to a true acceptance of responsibility or from one who simply 2. Ineffectiveness based upon failure to request a wants to “put his best foot forward” at sentencing with downward departure hopes of receiving leniency from the sentencing court. Furthermore, in order to keep the temporary liberty Campbell next argues that his trial counsel rendered defendant was given by delaying his sentence for almost ineffective assistance by failing to request a downward three years, abiding by the fairly typical terms of his No. 03-1178 Campbell v. United States 7 8 Campbell v. United States No. 03-1178

presentence release is not unexpected. As the First testimony concerning the witness’s current employment. Circuit stated, “such predictable reactions, while Nowhere in his testimony did Carroll relate any of the laudable, fall shy of what we believe is necessary to take allegations against defendant to organized crime, and he cases out of the heartland.” also testified that he was assigned to the Street Unit, not the Organized Crime Control Bureau, at the time he Nos. 98-3318, 98-3346, 1999 WL 98600, at *3 (6th Cir. arrested [Campbell’s] coconspirator Carol Bayless. Thus, Jan. 25, 1999) (unpublished opinion) (quoting United States there is not a reasonable probability that the comment v. Sklar, 920 F.2d 107, 117 (1st Cir. 1990)). Because influenced the jury’s verdict in any manner. See, e.g., Campbell failed to show that he was prejudiced by his United States v. Catalano, No. 91-50372, 1992 WL counsel’s failure to move for a downward departure based 212322, at *2 (9th Cir. Sept. 3, 1992) (per curiam) upon either disproportionality or post-offense behavior, we (defendant not denied a fair trial by prosecutor’s affirm the district court’s denial of relief to Campbell on this comments concerning organized crime where references ground. were isolated and not inflammatory); United States v. Thirion, 813 F.2d 146, 156 (8th Cir. 1987) (defendant 3. Ineffective assistance based upon trial proceedings not denied a fair trial by question relating to whether defendant, an attorney, had represented an organized Campbell also argues that the following errors occurred crime figure; the matter came up only once during the during the trial that deprived him of his Sixth Amendment course of a lengthy trial and defendant’s answer linked right to the effective assistance of counsel: the client, and not the defendant, to organized crime) . . . . a. Failure to object to government witness’s reference to organized crime Because Campbell fails to show that this comment prejudiced him, we affirm the district court’s denial of relief to Campbell Campbell contends that his trial counsel was ineffective for on this issue. failing to object and move for a mistrial after government witness Richard Carroll, a New York City police officer, b. Prejudicial remarks to the jury testified that he was assigned to the Organized Crime Control Bureau at the time of his testimony. This testimony, Campbell argues that his trial counsel rendered ineffective according to Campbell, “implicitly linked Campbell to this assistance by making prejudicial remarks to the jury during criminal group which has [] strongly negative connotations in his opening and closing statements. In his opening statement, the minds of most citizen jurors.” The R&R’s thorough for example, Campbell’s counsel stated: analysis of this issue explains why Campbell is not entitled to relief on this basis: Perform the duties that your oath says that you will do. And whatever your verdict is, it is. If your verdict Although defendant contends that this remark was ultimately is guilty, so be it; it’s guilty. That’s what our “irrelevant, inflammatory and prejudicial,” he does not system is about . . . . state how he was prejudiced by this single reference to organized crime. Notably, the comment was in no way Campbell contends that his counsel’s comments evidenced a connected to his case, but was simply part of background “lack of concern for the verdict” and that his counsel should No. 03-1178 Campbell v. United States 9 10 Campbell v. United States No. 03-1178

have instead argued “that a reasonable doubt, or doubts, d. Failure to call character witnesses should arise from the evidence . . . .” Campbell contends that his case presented the jury with a As noted in the R&R, these comments “do not amount to classic credibility question because the government asserted constitutionally ineffective assistance”: that he was involved in drug activity and Campbell denied those allegations. He argues that character witnesses On the contrary, counsel repeatedly emphasized the “testifying to [his] reputation for truthfulness and veracity burden of proof, requiring the prosecutor to prove the would have been significant.” According to Campbell, charges against petitioner beyond a reasonable doubt. He character witnesses were available to testify on his behalf, but also repeatedly stated that, in his view and for the reasons his trial counsel failed to call them. Campbell concludes that he explained at length to the jury, the prosecutor had not this failure amounts to the ineffective assistance of counsel. met this burden. While counsel’s discussion of the burden of proof was perhaps not as eloquent as it could Both the R&R and the government note, however, that have been, counsel at all times acted as an advocate for Campbell failed to provide any information regarding “what defendant and pressed defendant’s case. In these witnesses should have been examined more fully or what circumstances, the comments of counsel do not amount additional witnesses should have been called.” Consequently, to constitutionally ineffective assistance. Campbell cannot rebut the strong presumption that his attorney’s actions were the product of sound trial strategy. We agree, and accordingly affirm the district court’s denial of Strickland v. Washington, 466 U.S. 668, 690 (1984) (“[T]he relief to Campbell on this ground. court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant c. Failure to propose defense-theory instruction decisions in the exercise of reasonable professional judgment.”). We accordingly affirm the district court’s denial Campbell argues that his counsel’s failure to request a jury of relief to Campbell on this basis. instruction explaining his theory of the case amounted to the ineffective assistance of counsel. In his argument, however, e. Eliciting of prejudicial testimony Campbell does not demonstrate how he was prejudiced by this omission. The R&R explains that Campbell Campbell argues that his trial counsel rendered ineffective assistance by eliciting prejudicial testimony from three cannot show that he was prejudiced by counsel’s failure government witnesses on cross-examination. During the because his theory was adequately conveyed to the jury cross-examination of a Drug Enforcement Agency (DEA) by the Court’s instructions on the elements of the agent, Campbell’s trial counsel asked whether the agent felt government’s charges and the burden of proof. that Campbell “may have been somehow with or involved Defendant’s theory of the case was a simple denial of with” the other members of the alleged conspiracy. Campbell involvement in the conspiracy. contends that such testimony indicating a connection between Campbell and “admitted drug traffickers . . . could only have The R&R’s reasoning is persuasive and we therefore affirm inured to Campbell’s detriment.” With regard to this the district court’s denial of relief to Campbell on this claim. testimony, the R&R notes that the questions preceding and following the challenged question show that Campbell’s trial No. 03-1178 Campbell v. United States 11 12 Campbell v. United States No. 03-1178

counsel was attempting to cast doubt upon the DEA agent’s surveillance, to indicate that the defendant was involved belief: in the crime. In light of counsel’s successful cross- examination, it is difficult to see how this isolated Counsel was trying to show that the agent’s belief was statement would have, in defendant’s view, [led] the jury not credible given that he did not have the [car that to conclude that there were other witnesses who did not Campbell was traveling in] followed by another agent testify. when it left the motel parking lot [where the other coconspirators were]. Counsel asked a number of The R&R reasoned overall that questions establishing this fact, as well as the fact that the agent did not see defendant carrying anything either to or [w]hile counsel’s questions to the witnesses may from the room in which the other conspirators were illustrate a classic example of the first rule of cross- apparently conducting the transaction. examination; don’t ask a question unless you know what the answer will be, the only issue for the Court is Campbell next argues that his counsel’s cross-examination whether counsel’s conduct in asking the question fell of a police officer was improper because an inquiry as to below an objective standard of reasonableness. where the police officer had previously seen a picture of Campbell led the officer to respond that he had “seen a We agree with the R&R’s conclusion that Campbell has picture on a prior narcotic raid.” This answer is most likely failed to show that his counsel’s performance was deficient not what counsel expected, but, as the R&R notes, the and therefore affirm the district court’s denial of relief to question was part of a legitimate strategy on the part of Campbell on this issue. Campbell’s attorney to question the officer about his observations and identification of Campbell. f. Failure to impeach witness Orlando Bayless

Finally, Campbell argues that his defense counsel’s Campbell contends that his trial counsel’s failure to question to a DEA agent about whether he was “relying on impeach Orlando Bayless—a government witness and one of the word of government witnesses Carol Bayless, Orlando Campbell’s coconspirators—constituted the ineffective Bayless, Larry Anderson, and Christopher Owens” was assistance of counsel. He argues that his trial counsel should improper given that the DEA agent answered: “Not solely the have impeached Bayless regarding inconsistencies between fact of the people that you were discussing.” Campbell Bayless’s testimony at Campbell’s second and third trials contends that this answer implied that there were other concerning the amount of money Campbell used to purchase witnesses and other evidence that had not been presented at the drugs. Campbell also contends that his trial counsel trial and that such evidence would have been deemed should have impeached Bayless with the statement that improper had it been elicited by the prosecution. Again, we Bayless initially gave to the police, in which he denied any agree with the R&R’s analysis, which is as follows: knowledge of the money seized by the police.

This isolated statement came after counsel elicited We agree with the R&R’s analysis and conclusion on this repeatedly from the agent that he was, in fact, relying issue, which is as follows: primarily on the word of the government witnesses, and that he had no independent evidence, through No. 03-1178 Campbell v. United States 13 14 Campbell v. United States No. 03-1178

It is true that counsel could have chosen to attack Bayless prosecutorial misconduct and noted that this court had through the inconsistencies in his testimony. However, rejected the substantive claims on direct appeal. Given this the inconsistencies identified by defendant were court’s resolution of these claims, the R&R concluded that relatively minor, addressing whether defendant had Campbell could not show that his counsel was deficient or brought $70,000 or $80,000 to the motel. Counsel that he was prejudiced by his counsel’s failure to object or instead chose to focus his attack on Bayless on the move for a mistrial. substantial sentence reduction Bayless was hoping to receive in exchange for his testimony, and on Bayless’s The district court disagreed with the magistrate’s R&R on significant drug related activity. This was a reasonable this point, rejecting “that portion of the R&R that states the trial strategy. Further, defendant is unable to establish prosecutor’s statements did not rise to prosecutorial that he was prejudiced by counsel’s failure to question misconduct.” “[I]n the absence of a pronouncement from the Bayless about these minor inconsistencies. Sixth Circuit on this case,” the district court said that it “would have found prosecutorial misconduct.” Accordingly, we affirm the district court’s denial of relief to Campbell on this issue. We need not resolve this difference of opinion between the magistrate judge and the district judge, especially because we g. Failure to object to alleged prosecutorial do not read this court’s prior decision as absolving the misconduct prosecutor of any misconduct. The earlier decision on this issue is instead based upon the isolated nature of the remarks Campbell argues that his trial counsel’s failure to object to and the lack of prejudice to Campbell. To succeed on his several instances of alleged prosecutorial misconduct during ineffective assistance of counsel claim, Campbell must the government’s closing argument and to move for a mistrial demonstrate “that there is a reasonable probability that, but based upon that alleged misconduct constituted the ineffective for counsel’s unprofessional errors, the result of the assistance of counsel. Specifically, Campbell contends that proceeding would have been different.” Strickland v. the prosecutor improperly (1) vouched for the credibility of Washington, 466 U.S. 668, 694 (1984). This he has been the government’s witnesses, (2) expressed his personal unable to do. In the case before us, no less than four members opinion as to Campbell’s guilt, and (3) made inflammatory of the alleged drug conspiracy testified against Campbell at emotional appeals to the jury. trial. Given the overwhelming evidence establishing Campbell’s guilt, we believe that he would not have been able Campbell raised these identical claims as substantive issues to show that, but for his attorney’s failure to object to the in his direct appeal. A prior panel of this court held that the prosecutor’s alleged misconduct, the result would have been prosecutor’s remarks were isolated and that “[e]ven if the different. We accordingly affirm the district court’s denial of closing argument improperly appealed to the emotions of the relief to Campbell on this issue. jury, the error, if any, was not plain because there was ample evidence in the record to convict Robert.” United States v. h. Ineffective assistance based upon the cumulative Campbell, Nos. 98-1782, 98-2174, 2000 WL 1597858, at *4 effect of all alleged errors (6th Cir. Oct. 19, 2000) (unpublished opinion). In Campbell’s § 2255 proceedings, the magistrate judge analyzed the claim Campbell’s final ineffective-assistance-of-counsel claim is of ineffective assistance of counsel based upon the alleged that the “numerous errors concerning matters of great No. 03-1178 Campbell v. United States 15 16 Campbell v. United States No. 03-1178

importance . . . had to have [had] a substantial effect on the beyond a reasonable doubt the minimum amount specified in jury.” We acknowledge that trial-level errors that would be the indictment and that “the ultimate sentence does not exceed considered harmless when viewed in isolation of each other the statutory maximum for this amount.” United States v. might, when considered cumulatively, require reversal of a Zidell, 323 F.3d 412, 429 (6th Cir. 2003). conviction. United States v. Parker, 997 F.2d 219, 221 (6th Cir. 1993). But we also agree with the R&R that “the The government argues that Campbell failed to raise his accumulation of non-errors cannot collectively amount to a Apprendi claim either in the trial court or on direct appeal. violation of due process.” See McKinnon v. Ohio, No. 94- But Campbell was tried and sentenced in 1998 before 4256, 1995 WL 570918, at *12 (6th Cir. Sept. 27, 1995) Apprendi and its precursor, Jones v. United States, 526 U.S. (unpublished opinion) (quoting United States v. Rivera, 900 227, 243 n.6 (1999) (stating Apprendi’s general rule), were F.2d 1462, 1471 (10th Cir.1990) (“[C]umulative-error decided. This court has noted that a defendant’s objection to analysis should evaluate only the effect of matter determined the quantity of drugs attributed to him might suffice to to be in error, not the cumulative effect of non-errors.”); preserve an Apprendi challenge for appeal. United States v. United States v. Lumpkin, 192 F.3d 280, 290 (2d Cir. 1999) Stewart, 306 F.3d 295, 311 (6th Cir. 2002). (“[T]he accumulation of non-errors does not warrant a new trial.”). The present case presents a different procedural posture, however, in that Campbell is arguing that by timely objecting Because Campbell has not shown that any of the alleged on direct appeal to the drug quantities, he preserved his instances of ineffective assistance of counsel deprived him Apprendi claim for his § 2255 proceedings. Apprendi was “of a fair trial, a trial whose result is reliable[,]” Strickland, decided in June of 2000, after oral argument in Campbell’s 466 U.S. at 687, he cannot show that the accumulation of direct appeal, but a few months before this court issued its these non-errors warrant relief. We therefore affirm the decision. Campbell therefore could have cited Apprendi as district court’s judgment on this issue. supplemental authority while his direct appeal was pending. Fed. R. App. P. 28(j) (“If pertinent and significant authorities B. Apprendi claim come to a party’s attention after the party’s brief has been filed—or after oral argument but before decision—a party In a completely difference line of attack, Campbell argues may promptly advise the circuit clerk by letter, with a copy to that his sentence violates the rule established by the Supreme all other parties, setting forth the citations.”) (Emphasis Court in Apprendi v. New Jersey, 530 U.S. 466 (2000). In added). He in fact failed to do so. Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a Because our ultimate disposition of this issue is not crime beyond the prescribed statutory maximum must be dependent on whether or not Campbell preserved his submitted to a jury, and proved beyond a reasonable doubt.” Apprendi challenge, we will assume without deciding that he Id. at 490. This court held in United States v. Page, 232 F.3d did. The parties do not dispute that if Apprendi applies to this 536, 542-43 (6th Cir. 2000), that Apprendi also applies to the case, then the quantity of drugs Campbell allegedly possessed determination as to the amount of drugs necessary to impose should have been submitted to the jury and proved beyond a the mandatory minimum sentences provided in 21 U.S.C. reasonable doubt. Despite this, Apprendi errors are 841(b)(1). Apprendi does not require that a precise amount of considered to be trial-type errors subject to harmless-error drugs be found by the jury; it suffices that the jury finds review. United States v. Copeland, 321 F.3d 582, 603 (6th No. 03-1178 Campbell v. United States 17

Cir. 2003). Thus, if the government “can demonstrate beyond a reasonable doubt that the jury would have found the defendant liable for the drug quantity at issue in sentencing, this court must consider the error harmless and sustain the defendant’s sentence.” Id. Campbell’s 324-month sentence was subject to the enhanced sentencing range governed by 21 U.S.C. § 841(b)(1)(A), which increases the range of a defendant’s sentence from no mandatory minimum and a 20-year maximum prescribed in 21 U.S.C. § 841(b)(1)(C) to a mandatory minimum of 10 years and a maximum of life if the conviction involves more than one kilogram of heroin or more than five kilograms of cocaine. The increase in Campbell’s sentencing range, therefore, was attributable to the amounts of heroin and cocaine involved in the conspiracy. We agree with the R&R’s conclusion that once the jury found beyond a reasonable doubt that Campbell was involved in the conspiracy, “it could have had no doubt that the conspiracy involved more than one kilogram of heroin and more than five kilograms of cocaine.” The police seized 34 kilograms of cocaine and 2 kilograms of heroin on a single occasion from one of Campbell’s coconspirators, to say nothing of the 150 kilograms or more of cocaine and heroin proven to be involved in the overall conspiracy. “If this jury was going to convict [Campbell] at all—which it plainly did— there is simply no way on this record that it could have failed to find that he was conspiring to distribute” one kilogram or more of heroin and five kilograms or more of cocaine. United States v. Nance, 236 F.3d 820, 826 (7th Cir. 2000). Accordingly, we affirm the district court’s denial of relief to Campbell on his Apprendi claim. III. CONCLUSION For all of the reasons set forth above, we AFFIRM the judgment of the district court.