United States v. Curtis Leroy Campbell

295 F.3d 398, 2002 U.S. App. LEXIS 13199, 2002 WL 1426534
CourtCourt of Appeals for the Third Circuit
DecidedJuly 2, 2002
Docket00-1698
StatusPublished
Cited by33 cases

This text of 295 F.3d 398 (United States v. Curtis Leroy Campbell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Curtis Leroy Campbell, 295 F.3d 398, 2002 U.S. App. LEXIS 13199, 2002 WL 1426534 (3d Cir. 2002).

Opinions

FUENTES, Circuit Judge.

Curtis Leroy Campbell was indicted for distributing in excess of 50 grams of cocaine base (“crack”) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(A)(iii). At trial, the District Court instructed the jury as to the drug offense but did not submit the issue of drug quantity to the jury as an element to be proven beyond a reasonable doubt. After a guilty verdict, the court sentenced Campbell to 22 years of imprisonment and 5 years of supervised release. He appeals, contending that in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), his sentence was unconstitutional because the issue of drug quantity, which resulted in a sentence beyond the statutory maximum authorized by the jury’s verdict, had not been submitted to the jury and proven beyond a reasonable doubt. We conclude that, because the evidence at trial supported a conviction, under 21 U.S.C. § 841(b)(l)(B)(iii), which provides for a 5 to 40 year sentence for distribution of at least 5 grams of cocaine base, Campbell’s sentence, although in violation of Appren-di, did not constitute plain error. We will therefore affirm.

I.

In November 1997, Rick Szurlej, a local officer who served as a Special Agent for the United States Drug Enforcement Agency (“DEA”), purchased a small amount of crack cocaine from Kenneth Cottingham. After his arrest, Cottingham agreed to cooperate by assisting in the investigation of other drug activities in the West End and McKees Rocks areas of Pittsburgh, Pennsylvania. During a debriefing, Cottingham named Campbell as one of his drug sources.

On January 11, 1999, as part of the DEA’s ongoing investigation and under Szurlej’s supervision, Cottingham arranged a controlled purchase from Campbell. By telephone, Cottingham scheduled a meeting with Campbell to purchase two ounces of crack cocaine for $2,000. Approximately a half hour later that day, and under DEA surveillance, Cottingham entered Campbell’s vehicle. Once inside, Cottingham handed Campbell $2,000, and Campbell supplied crack cocaine in return. After Campbell dropped Cottingham off, the DEA seized the crack cocaine, which [401]*401was weighed and delivered to the DEA laboratory in New York.

At trial, the Government first called Cottingham, who testified regarding the crack cocaine he purchased from Campbell. The next witness was Szurlej, who testified that he outfitted Cottingham with a digital recorder, picked him up after the controlled purchase, and promptly seized the drugs.

During Szurlej’s direct testimony, the prosecutor stated, “I believe, Your Honor, we have a stipulation as to the chemical analysis.” Counsel then conferred off the record and, when questioning resumed, Szurlej testified that the chemical analysis determined that the drugs seized were cocaine base, commonly known as crack cocaine. When questioned about the weight, Szurlej responded that it was 53.2 grams with a purity level of 41%. After Szurlej, the DEA forensic chemist, Chris Anne Eleftheriou, testified that she performed the chemical analysis, which revealed that the drugs weighed 53.2 grams and had a cocaine base purity of 41 percent. She testified that the remaining 59 percent of the substance contained unidentified cutting agents, processing impurities, and other by-products. Campbell’s counsel asked her whether the substance might have absorbed atmospheric moisture and thereby gained weight. Eleftheriou thought this possibility was unlikely.

Three other DEA agents, Richard Nolan, Daniel Snyder, and Dominick Braccio, also testified about their surveillance of the controlled purchase operation and identified Campbell as present at that operation. Before his cross-examination of Braccio, Campbell’s trial counsel asked the court about “the effect of the stipulation that the sample was cocaine.” He said that “a little bit of an issue came up as to the weight, and I’m not sure to what extent I am bound by the stipulation I gave and to what extent I can comment on whether we have a doubt here, as to whether we’re at 50 grams or not.” Campbell’s attorney sought guidance about whether, in light of the stipulation, he remained free to contest drug quantity, and specifically whether the evidence showed an amount equal to or exceeding 50 grams. During the ensuing colloquy, the prosecutor took the position that drug quantity was not an element of the offense and therefore was not subject to a jury determination. The prosecutor stated that the jury did not “have to find as an element that it’s over 50 grams. That’s not an issue for them to decide.” The court agreed, stating that “[i]t is not an issue to be argued at this time.”

After the conclusion of testimony and closing arguments, the court instructed the jury that, in order to convict Campbell, it must find, beyond a reasonable doubt, that he “acted knowingly and willfully” and that he “possessed with the intent to distribute and/or distributed cocaine base.” The District Court did not submit the drug quantity issue to the jury. Instead, the court told the jury that the seized drugs were crack 'cocaine, which were “analyzed and found to be 41 per cent pure and weighed 53.2 grams.” Thereafter, the jury found Campbell guilty.

The Presentence Investigation Report (“PSR”) stated that Campbell had dealt with over 1.5 kilograms of cocaine, which required an offense level of 38. The PSR also assigned Campbell a criminal history category of II based, in part, upon information provided by confidential informants who indicated that some of Campbell’s drug dealing occurred while he was on probation. Consequently, Campbell’s guideline sentencing range was 262' to 327 months.

During a sentencing hearing in May 2000, the District Court questioned the Government concerning the amount of con[402]*402trolled substance attributable to Campbell. The Government explained that the amount purchased on the date alleged in the indictment was 53.2 grams. Further, the Government stated that 1.5 kilograms of crack cocaine could be attributed to Campbell based upon his own pre-arrest statements to DEA agents and a “conservative approach in doing the math.” The court then admitted Campbell’s statements into the record. The Government also emphasized that Campbell had been involved with about 500 grams and 1.5 kilograms of crack cocaine in relation to two different individuals, and that confidential informants had confirmed that Campbell had dealt in those quantities of drugs. Finally, the Government pointed to a tape recording showing that Campbell had been prepared to deal in 1 kilogram of crack cocaine.

Campbell’s counsel stated that he had objections to the PSR. The court declared a 10-minute recess to give him an opportunity to confer with Campbell concerning those objections. After the recess, defense counsel stated that “my client [has] advised me that he specifically contests paragraphs 10 through 19 inclusive,” which included “each and every one of the paragraphs setting forth allegations of relevant conduct.” Campbell also “contested] the allegation that he made the alleged confession to the agents.” However, counsel provided no further detail concerning the grounds for the objections. Notably, Campbell did not object to paragraph 9 of the PSR, which implicated him in the sale of 53.2 grams of cocaine base to Cotting-ham for $2,000.

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Bluebook (online)
295 F.3d 398, 2002 U.S. App. LEXIS 13199, 2002 WL 1426534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-curtis-leroy-campbell-ca3-2002.