United States v. Melvin E. Campbell ( 1996 )

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No. 95-1674
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Melvin Edward Campbell, *
* [PUBLISHED]
Defendant-Appellant. *
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Submitted: February 13, 1996
Filed: February 23, 1996
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Before McMILLIAN, LAY and HANSEN, Circuit Judges.
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PER CURIAM.
In a multi-count, multi-defendant indictment, Melvin Edward
Campbell was charged with conspiracy to manufacture, possess, and
distribute more than five kilograms of cocaine and more than fifty
grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A), and 846. The indictment alleged that Campbell was a
source of cocaine for Shirley Williams, a co-defendant, from the
mid-1980s until 1988 and then again in 1991 and 1992. During the
course of the trial of Campbell and three co-defendants, the
government filed a one-count information charging Campbell with an
unlawful use of a communications facility, a telephone, in the
commission of a controlled substance felony in violation of 21
U.S.C. § 843(b). Campbell pled guilty to the one-count information
pursuant to a plea agreement in which the government dismissed the
prior charges. The Sentencing Guidelines provided for a base
offense level of 12 and a guidelines range of imprisonment of 12 to
18 months. The district court, the Honorable David S. Doty,
presiding, departed upward from the guidelines range and imposed a
48-month term of imprisonment. Campbell appeals.
Campbell contends the only criminal conduct to which he pled
guilty was use of a telephone in a drug felony in 1986, prior to
the effective date of the Sentencing Guidelines.1 In his guilty
plea, Campbell acknowledged use of a telephone in a drug felony in
1988, but claims it was in cooperation with the police in an
investigation of Shirley Williams. Campbell thus argues there was
no underlying commission of a drug felony because his actions in
1988 were done in cooperation with the police.
The factual basis for Campbell's appeal is that in his plea
colloquy, when asked if he used a telephone to arrange drug deals
with Shirley Williams in 1988, Campbell testified, "In '88, when
the police -- yes." Plea Tr. at 17. However, we find the district
court did not clearly err in its factual determination that
Campbell committed criminal conduct after the November 1, 1987
effective date of the Guidelines. See United States v. Wayne, 903
F.2d 1188, 1196-97 (8th Cir. 1990) (clear error standard on review
of factual findings as to timing of criminal activity). The plea
agreement stated "the defendant agree[s] that he utilized the
telephones to discuss the sale and distribution of cocaine with
Shirley Williams during the years 1986 and 1988, and that said
discussions were part of the conspiracy charged herein." Plea
Agreement at 1 (emphasis added). The plea agreement also stated
1
Campbell concedes that, even if his appeal succeeds, the
length of his sentence would not change because the district
court clearly stated its intention to sentence Campbell to a 48-
month term of imprisonment under pre-Guidelines law, which is
within the applicable statutory limits for a violation of 21
U.S.C. § 843(b). See United States v. Dunlop, 960 F.2d 55, 56
(8th Cir. 1992) (district court may impose a pre-Guidelines
sentence in accord with the Guidelines if within statutory
limits). Rather, Campbell seeks to gain certain advantages of a
pre-Guidelines sentence, such as eligibility for parole under 18
U.S.C.A. § 4205(a) (West 1985).
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"[t]he defendant understands that he will be sentenced in
accordance with the applicable sentencing guidelines under the
Sentencing Reform Act of 1984." Id. at 3. Campbell does not
challenge the validity of this plea agreement. Finally, the
district court also properly relied on testimony at trial by
Campbell's co-conspirators, which was subject to cross-examination
by Campbell's lawyer, that Campbell had been involved in criminal
activity well after November 1, 1987. See United States v. Dailey,
918 F.2d 747, 748 (8th Cir. 1990) (district court may rely upon
evidence presented at trial in sentencing). We hold the district
court properly applied the Sentencing Guidelines in sentencing
Campbell for his conviction under 21 U.S.C. § 843(b).
The judgment is AFFIRMED.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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