United States v. Campbell ( 2022 )

20-4204-cr
United States of America v. Campbell
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
24th day of January, two thousand twenty-two.
Present: ROSEMARY S. POOLER,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
_____________________________________________________
UNITED STATES OF AMERICA,
Appellee,
v. 20-4204-cr
GEORGE CAMPBELL, AKA ROLAND CAMPBELL,
AKA RAMADAN,
Defendant-Appellant. 1
_____________________________________________________
Appearing for Appellant: Edward S. Zas, Federal Defenders of New York, Inc., Appeals
Bureau, New York, N.Y.
Appearing for Appellee: Robert M. Pollack, Assistant United States Attorney (David C.
James, Assistant United States Attorney, on the brief), for
Jacquelyn M. Kasulis, Acting United States Attorney for the
Eastern District of New York, Brooklyn, N.Y.
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The Clerk of Court is directed to amend the caption as set forth above.
Appeal from the United States District Court for the Eastern District of New York (Dearie, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is VACATED and the
case is REMANDED.
George Campbell appeals from the December 9, 2020 order of the United States District
Court for the Eastern District of New York (Dearie, J.) denying his motion for a reduction of his
sentence pursuant to 18 U.S.C. § 3582(c)(1)(A). We assume the parties’ familiarity with the
underlying facts, procedural history, and specification of issues for review.
We review the denial of a motion for a discretionary sentence reduction for abuse of
discretion. United States v. Holloway, 956 F.3d 660, 664 (2d Cir. 2020); see also United States v.
Borden, 564 F.3d 100, 104 (2d Cir. 2009). Where “the decision evinces ‘an erroneous view of
the law’ or ‘a clearly erroneous assessment of the evidence,’ or where it falls outside ‘the range
of permissible decisions,’ we will vacate” for abuse of discretion. United States v.
Moyhernandez, 5 F.4th 195, 205 (2d Cir. 2021) (citing Borden, 564 F.3d at 104 (2d Cir. 2009)).
As relevant to this case, 18 U.S.C. § 3582(c)(1)(A)(i) provides that a court “may reduce
the term of imprisonment (and may impose a term of probation or supervised release with or
without conditions that does not exceed the unserved portion of the original term of
imprisonment), after considering the factors set forth in [18 U.S.C. §] 3553(a) to the extent that
they are applicable, if it finds that . . . extraordinary and compelling reasons warrant such a
reduction . . . and that such a reduction is consistent with applicable policy statements issued by
the Sentencing Commission . . . .” Some of the factors to be considered under Section 3553(a)
include the nature and circumstances of the offense; the history and characteristics of the
defendant; the need for the sentence to reflect the seriousness of the offense, promote respect for
the law, provide just punishment, afford adequate deterrence, and protect the public from future
crimes by the defendant; and the need to avoid unwarranted sentencing disparities. Id. § 3553(a).
Recently in United States v. Brooker, we stated that “the First Step Act freed district
courts to consider the full slate of extraordinary and compelling reasons that an imprisoned
person might bring before them in motions for compassionate release. Neither Application Note
1(D), nor anything else in the now-outdated version of Guideline § 1B1.13, limits the district
court's discretion.” 976 F.3d 228, 237 (2d. Cir. 2020). “The only statutory limit on what a court
may consider to be extraordinary and compelling is that ‘[r]ehabilitation . . . alone shall not be
considered an extraordinary and compelling reason.’” Id. at 237-38 (alterations and emphasis in
original) (citing 28 U.S.C. § 994(t)).
Campbell first argues that the district court abused its discretion by failing to deem the
“unstacking” of his 18 U.S.C. § 924(c) convictions as an “extraordinary and compelling
reason[]” for release under 18 U.S.C. § 3582(c)(1)(A)(i). The First Step Act of 2018 amended
Section 924(c), preventing firearm offenses that were charged in the same indictment as the first
offense from counting as repeat offenses and thus preventing the aggregation of lengthy
mandatory consecutive sentences, an effect known as “stacking” Section 924(c)
convictions See First Step Act § 403(a), Pub. L. No. 115-391, 132 Stat. 5194, 5221-22 (“FSA”).
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Campbell has seven convictions for using and carrying a firearm while committing a crime of
violence, in violation of Section 924(c), all of which were charged in the same indictment. As
Campbell’s counsel recognized before the district court, and as Campbell concedes here, the
“unstacking” provisions of the FSA do not apply retroactively. United States v. Waite, 12 F.4th
204, 214 (2d Cir. 2021) (discussing how Congress expressly declined to make all the First Step
Act’s amendment to § 924(c)(1)(C) retroactive). Campbell nonetheless contends that this change in
law constitutes an extraordinary and compelling reason for a sentence reduction in his case. Campbell’s
counsel thus argued below that, if he were to be sentenced today, Campbell would receive a 60-
year sentence due to the unstacking provisions. The district court agreed with that assessment,
writing that “[a]s defendant concedes, under the new FSA regime, he would be sentenced to 60
years’ imprisonment.” App’x at 245. Because Campbell was already required to be released after
50 years under an extradition agreement between Costa Rica and the United States, the district
court concluded that the unstacking of Campbell’s Section 924(c) convictions would have no
practical effect on his sentence. Therefore, the district court reasoned, the sentencing changes
brought about by the First Step Act did not constitute extraordinary and compelling
circumstances justifying a reduction of Campbell’s sentence: unstacking would have no bottom-
line benefit for Campbell, it determined.
On appeal, however, Campbell raises a new argument: that if Campbell were to be re-
sentenced today, he could also benefit from the changes brought about by United States v.
Booker, 543 U.S. 220 (2005), which made the Sentencing Guidelines advisory; and United States
v. Brown, 935 F.3d 43 (2d Cir. 2019), in which we interpreted the Supreme Court’s ruling in
Dean v. United States, 137 S. Ct. 1170 (2017), to mean that “a sentencing judge, selecting a
sentence for a predicate offense, [is] not prohibited from considering the severity of a mandatory
consecutive minimum sentence, and has the discretion, but not the obligation, to consider such
severity.” 935 F.3d at 46. Campbell argues the impact of these cases is that the court today would
be free to impose an overall term of imprisonment as low as 35 years for the seven § 924(c)
convictions, and would not be required to impose any additional prison time for the underlying
robbery and conspiracy convictions, none of which carry a mandatory minimum prison term.
Campbell recognizes that this argument was not raised below. Where, as here, a
defendant fails to raise a procedural objection at the time of sentencing, we review for plain
error. See United States v. Caltabiano, 871 F.3d 210, 219 (2d Cir. 2017). Plain error exists when
“(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute;
(3) the error affected the appellant's substantial rights, which in the ordinary case means it
affected the outcome of the district court proceedings; and (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v. Marcus, 560
U.S. 258, 262 (2010) (alteration and internal quotation marks omitted).
The district court did not acknowledge that it could have sentenced Campbell to as little
as 35 years under the current sentencing regime, instead focusing on the 60-year sentence and
finding that this sentence would have no practical impact because of the 50-year term required
by the extradition treaty. As the government admits, the changes in sentencing law that Campbell
cites are clear. Contrary to the government’s argument, however, the district court’s decision
does not reflect that the court recognized its discretion but nonetheless found that a 60-year
sentence would have been appropriate, such that the changes in sentencing law did not constitute
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extraordinary and compelling reasons justifying a sentence reduction. We thus conclude that it is
appropriate to remand for reconsideration of Campbell’s motion to ensure the district court’s
denial was not based on a misunderstanding of the law. Cf. United States v. Corsey, 723 F.3d
366, 376 (2d Cir. 2013) (remanding for resentencing because record was ambiguous as to
whether district court improperly treated the statutory maximum as the only reasonable
sentence); United States v. Cossey, 632 F.3d 82, 88-89 (2d Cir. 2011) (remanding for
resentencing where it was unclear whether district court sentenced defendant based on an
appropriate or inappropriate consideration).We therefore grant a limited remand for the district
court to consider the effect, if any, Booker, Dean, and Brown may have on its consideration of
the requested sentence reduction.
Finally, Campbell argues that the district court abused its discretion by ruling that his
asthma, hypertension, and obesity, which cause an increased risk of severe COVID-19, do not
constitute extraordinary and compelling circumstances. We have recognized that “courts around
the country, including in this circuit, have used [the coronavirus pandemic] as a justification for
granting some sentence reduction motions.” Brooker, 976 F.3d at 238. Both parties debate the
severity of the COVID-19 pandemic within the facility where Campbell is incarcerated, but the
ultimate question we must answer is whether the decision evinces “an erroneous view of the
law,” “a clearly erroneous assessment of the evidence,” or if it fell outside “the range of
permissible decisions,” such that an abuse of discretion can be found. Moyhernandez, 5 F.4th at
205. Here, the district court considered the severity of the outbreak and Campbell’s risk factors,
finding that they did not constitute extraordinary and compelling circumstances. Campbell does
not offer any persuasive argument that the district court either had an erroneous view of the law,
an erroneous assessment of the evidence, or that it fell outside of the “range of permissible
decisions.” The district court did not abuse its discretion.
We have considered the remainder of the parties’ arguments and find them to be without
merit. Accordingly, the order of the district court hereby is VACATED and the case is
REMANDED for further proceedings consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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