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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
UNITED STATES OF AMERICA
v.
ROBERT DESHAWN CAMPBELL
)
)
)
)
)
NO. 3:05-CR-23
JUDGE PHILLIPS
GOVERNMENT’S RESPONSE TO DEFENDANT’S MOTION
FOR DOWNWARD DEPARTURE AND VARIANCE [Doc. 173]
Defendant Campbell has filed a Motion For Downward Departure and Variance.
The United States respectfully opposes this motion and will address each of the
defendant’s arguments below.
Defendant Campbell’s history and characteristics do not warrant a
sentence lower than similarly situated criminals.
Defendant Campbell first contends that his psychiatric issues, including the fact
that he is a “brain-damaged crack addict with a bullet lodged in the front lobe of his
brain,” warrant a sentence lower than otherwise might be applicable. In advancing this
argument, defendant Campbell states that he “grew up in what can only be classified as
a war zone.” Defendant Campbell’s motion [Doc. 173] at 4. The reality is that the area
where he was raised is a high gun crime area. Unfortunately, defendant Campbell is
more of the cause than the victim. While there is no way to ever know how young
defendant Campbell was when he began committing serious violent crimes, his criminal
history documents weapons, drug, and aggravated robbery convictions at age 16. PSR
at 8-9 ¶¶ 39-40. Thereafter, the defendant’s documented criminal history includes one
aggravated assault where “the defendant robbed and shot Ivan M. Scranton in the legs,”
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an aggravated robbery in which the defendant brandished a firearm and robbed a
seventeen-year-old of his jewelry, and an aggravated robbery conviction in which
defendant Campbell hit Rick Madison in the face with a 9mm pistol and stole his money
and other items of value. Finally, the violent nature of the defendant’s criminal history
pinnacles with the gangland style drive-by shooting in which the defendant and others
killed a five-year old girl. PSR at 11-12.
In summary, the defendant’s suggestion that he is a “victim” of a war zone is, to
say the least, inaccurate.
Defendant Campbell’s guidelines are not based on drug quantities.
Defendant Campbell’s next argument revolves around the fact that the
sentencing guidelines establish different ranges for cocaine base and powder cocaine
offenders. Defendant Campbell notes that the Court can reject, on policy grounds, the
crack guidelines and treat crack and powder similarly. That argument, however, is
wholly irrelevant in this case. The defendant’s Sentencing Guideline range is based on
his extensive violent criminal history and his convictions for multiple firearms offenses.
Defendant Campbell’s acquittal of counts 4 and 5 does not warrant a
departure or variance.
The minimum mandatory sentence (20 years) and the Sentencing Guideline
range (360 months to life) were calculated based on the jury’s verdict finding the
defendant guilty of distribution of cocaine base (Count 1), possession of a firearm in
furtherance of a drug trafficking crime (Count 2), and being an armed career criminal in
possession of a firearm (Count 3). If he had been convicted of the offenses charged in
the remaining counts (Counts 4 and 5), he acknowledges that his minimum mandatory
2
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sentence would have been 45 years. He was, however, not convicted of those
offenses.
Defendant Campbell now argues that the Court should come below the Guideline
range set with respect to Counts 1, 2, and 3 because he was charged with and not
convicted of crimes that would have carried a greater sentence. Exactly how the
acquittal of other crimes is a mitigating factor with respect to those he was convicted of,
however, is left unexplained. The United States respectfully submits that the fact that
he was not convicted of additional crimes is not a mitigating factor nor does it warrant a
downward departure or variance.
The defendant did not provide substantial assistance to the United
States in the investigation or prosecution of other individuals.
Citing U.S.S.G. § 5K1.1 and cases construing it, defendant Campbell
presumably1 argues that the Court can and should depart downward because he made
incriminating statements to the police at the time of his arrest. The defendant’s
argument is based entirely on the fact that on the night of his arrest he was interviewed
by the police and confessed to committing federal drug and firearms offenses. These
incriminating statements did not assist in the arrest or even the investigation of any
other individual and do not warrant a downward departure.
1
Although this section of the motion does not expressly request a downward
departure, it is included in the defendant’s Motion for Downward Departure and
Variance.
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A five-year consecutive term of imprisonment is required pursuant to
18 U.S.C. § 924(c).
Defendant Campbell correctly notes that the Supreme Court has granted
certiorari on the question of whether 18 U.S.C. § 924(c) requires a consecutive
sentence when a greater minimum sentence is otherwise called for. However, the
United States submits that this argument has been rejected by the Sixth Circuit:
Examining the statute as a whole, particularly in light of the language of
§ 924(c) and the purpose behind the 1998 amendments, we do not
believe that Congress intended to narrow § 924(c) by eliminating
mandatory consecutive sentences where another provision imposes a
higher mandatory minimum sentence for conduct other than that
described in § 924(c). For these reasons, we reject [the defendant’s]
interpretation of § 924(c) and conclude that [the defendant’s] sentence
does not constitute double jeopardy.
United States v. Baldwin, 41 F. App’x 713, 715 (6th Cir. 2002) (quoting States v.
Studifin, 240 F.3d 415, 423-24 (4th Cir. 2001)). Moreover, this Court has recently
rejected the same argument in United States v. Bennett, 3:07-CR-81 (sentencing
January 29, 2010).
Conclusion.
For the foregoing reasons, the United States respectfully submits that the
defendant’s arguments for a variance and departure should be rejected.
Respectfully submitted,
James R. Dedrick
United States Attorney
By:
s/ Steven H. Cook
Assistant U.S. Attorney
800 Market Street, Suite 211
Knoxville, Tennessee 37902
865.545.4167
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CERTIFICATE OF SERVICE
I hereby certify that, on February 2, 2010, a copy of the foregoing
response was filed electronically. Notice of this filing will be sent by operation of the
Court’s electronic filing system to all parties indicated on the electronic filing receipt. All
other parties will be served by regular U.S. mail. Parties may access this filing through
the Court’s electronic filing system.
s/ Steven H. Cook
Assistant U.S. Attorney
800 Market Street, Suite 211
Knoxville, Tennessee 37902
(865) 545-4167
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