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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,” Case 3:05-cr-00023 Document 174 Filed 02/02/10 Page 1 of 5 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 Case 3:05-cr-00023 Document 174 Filed 02/02/10 Page 2 of 5 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. 3 Case 3:05-cr-00023 Document 174 Filed 02/02/10 Page 3 of 5 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 4 Case 3:05-cr-00023 Document 174 Filed 02/02/10 Page 4 of 5 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 5 Case 3:05-cr-00023 Document 174 Filed 02/02/10 Page 5 of 5