United States of America v.  Gerald Lynn Campbell

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4539 
GERALD LYNN CAMPBELL,
Defendant-Appellant. 
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, District Judge.
(CR-98-66)
Argued: April 2, 2001
Decided: August 1, 2001
Before MOTZ and GREGORY, Circuit Judges, and
Frederic N. SMALKIN, United States District Judge
for the District of Maryland, sitting by designation.
Vacated and remanded by published opinion. Judge Motz wrote the
opinion, in which Judge Gregory and Judge Smalkin joined.
COUNSEL
ARGUED: Margaret McLeod Cain, Charlottesville, Virginia, for
Appellant. Ray B. Fitzgerald, Jr., Assistant United States Attorney,
Charlottesville, Virginia, for Appellee. ON BRIEF: Robert P.
Crouch, Jr., United States Attorney, Charlottesville, Virginia, for
Appellee.

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OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
This case turns on a question of first impression in this circuit,
namely whether infliction of "bodily injury" and use of a deadly or
dangerous weapon in 18 U.S.C. § 111(b) (1994) constitute offense
elements. We hold that they do and, for the reasons that follow,
reverse Gerald Lynn Campbell’s sentence and remand for resentenc-
ing.
I.
On October 11, 1998, federal marshals transported Campbell, a
federal prisoner, from the Augusta Correctional Center in Staunton,
Virginia to the Albemarle-Charlottesville Regional Jail where he was
to be incarcerated until his transfer to another federal facility. That
night, while being served dinner, Campbell forced his way out of his
cell. Officer Shannon Button ordered Campbell to return to his cell,
but he refused.
As Campbell advanced, Button attempted to protect herself by fir-
ing pepper spray at him, but her spray cannister failed to discharge.
Campbell and Button then engaged in a scuffle during which Camp-
bell removed the pepper spray from Button’s grasp and tried to spray
her, but again the spray cannister did not discharge. Campbell then hit
Button, causing her glasses to break. A nearby correctional officer
saw the altercation and called for help. When other correctional offi-
cers arrived on the scene to assist Button, Campbell attempted to
avoid submission by holding Button as a shield. Campbell also tried
to pepper spray the assisting officers; they responded by spraying
Campbell with pepper spray and ultimately subdued him.
As a result of these events, a federal grand jury returned an indict-
ment charging Campbell with assault on a federal officer, in violation
of 18 U.S.C. §§ 111(a)(1) and 111(b).1 Specifically, the indictment
charged:
1The grand jury also charged Campbell with abduction, in violation of
18 U.S.C. § 1201 (1994), but the jury acquitted Campbell of that crime.
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That on or about October 11, 1998 . . . Gerald Lynn Camp-
bell, did knowingly and forcibly and by means of a danger-
ous weapon, assault, oppose, impede, intimidate or interfere
with Shannon Button, a correctional officer at the
Charlottesville-Ablemarle Regional Jail, while Button was
engaged in . . . the performance of her official duties . . . .
(Emphasis added). Although § 111(b) identifies infliction of "bodily
injury," in addition to use of a dangerous weapon, as a possible aggra-
vating factor, that factor was not mentioned in Campbell’s indictment.
Campbell’s trial began on March 25, 1999. During trial, the gov-
ernment argued that pepper spray was a dangerous weapon within the
meaning of § 111(b). At the end of the trial, the district court
instructed the jury that, with respect to the count of assault under 18
U.S.C. § 111, two verdicts were possible. According to the district
court’s instructions, the jury could either "find the defendant guilty or
not guilty of the crime of assault without a deadly weapon, or [it
could] indicate that [Campbell] used a deadly weapon if [it found]
beyond a reasonable doubt that he did." (Emphasis added). The dis-
trict court informed the jury that "for sentencing purposes, it’s more
serious if you use a deadly weapon." The verdict form permitted the
jury to indicate whether it found Campbell not guilty of assault, guilty
of assault with a dangerous weapon, or guilty of assault without a
dangerous weapon. At the conclusion of the trial, the jury found
Campbell guilty of assault, but not guilty of assault with a dangerous
weapon. On the verdict form, the jury expressly indicated its finding
that Campbell had not used a dangerous weapon in committing the
assault on Button.
Prior to sentencing, on April 5, 1999, the government filed a notice
of enhanced penalty pursuant to 18 U.S.C. § 3559(c)(4) (1994),
informing Campbell of its intent to pursue a penalty of life imprison-
ment. The notice asserted that Campbell’s § 111 conviction consti-
tuted a "serious violent felony" and listed several of Campbell’s prior
convictions, which the government claimed amounted to first and sec-
ond "strikes" pursuant to § 3559.
Campbell’s sentencing hearing took place on June 29, 1999. At the
hearing, Campbell’s counsel and the prosecutor hotly debated
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whether, in light of the jury’s finding that Campbell did not use a dan-
gerous weapon, Campbell was eligible for the maximum ten-year sen-
tence authorized by § 111(b) for assaults involving bodily injury or
use of a dangerous weapon. The district court determined that inflic-
tion of bodily injury and use of a dangerous weapon within the mean-
ing of § 111(b) were sentencing factors, not elements of a separate
crime that needed to be charged in the indictment.
Based on the trial testimony, as well as additional testimony from
Button as to the extent of her injuries, the district court found that (i)
Campbell did not use a dangerous weapon, (ii) Campbell’s assault
inflicted bodily injury on Button, thereby making Campbell eligible
for up to ten years imprisonment under § 111(b), but (iii) Campbell’s
assault did not inflict serious bodily injury on Button, making Camp-
bell ineligible for a sentencing enhancement under USSG § 2A2.2.2
The district court then sentenced Campbell under the Sentencing
Guideline for "Obstructing or Impeding Officers," which carries a
base offense level of 6, and applied a three-level enhancement for
conduct involving "physical contact." USSG § 2A2.4(b)(1). The
resulting sentence was the ten-year maximum sentence authorized by
§ 111(b).
The district court further concluded that this offense constituted
Campbell’s third serious violent felony pursuant to § 3559, and sen-
tenced him to life imprisonment. Campbell now appeals, maintaining
that the district court erred in sentencing him.
II.
We first consider whether infliction of bodily injury and use of a
deadly or dangerous weapon in § 111(b) constitute sentencing factors
or offense elements.
2The government sought to have Campbell sentenced under the guide-
line for "Aggravated Assault," USSG § 2A2.2, which carries a base
offense level of 15. "Aggravated assault," by definition, however,
requires a finding of either use of a dangerous weapon or infliction of
serious bodily injury. See USSG § 2A2.2, comment. (n. 1) (emphasis
added). The district court found that neither of those elements were pres-
ent in this case.
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Section 111 provides in relevant part:
(a) In general. Whoever . . . forcibly assaults, resists,
opposes, impedes, intimidates or interferes with [any desig-
nated federal officer] while engaged in . . . the performance
of official duties . . . shall, where the acts in violation of this
section constitute only simple assault, be . . . imprisoned not
more than one year, . . . and in all other cases, be . . . impris-
oned not more than three years . . . .
(b) Enhanced Penalty. Whoever, in the commission of any
acts described in subsection (a), uses a deadly or dangerous
weapon (including a weapon intended to cause death or dan-
ger but that fails to do so by reason of a defective compo-
nent) or inflicts bodily injury, shall be . . . imprisoned not
more than ten years . . . .
Thus, by its own terms, § 111 provides maximum penalties of (i) one
year imprisonment for simple assault, or an assault not involving
physical contact,3 (ii) ten years imprisonment for assault involving
use of a dangerous or deadly weapon or infliction of bodily injury,
and (iii) three years imprisonment for all other assaults. See United
States v. Ramirez, 233 F.3d 318, 321-22 (5th Cir. 2000); United States
v. Chestaro, 197 F.3d 600, 606 (2nd Cir. 1999).
Two years ago, in Jones v. United States, 526 U.S. 227, 229
(1999), the Supreme Court held that "serious bodily injury" consti-
tuted an offense element under the federal carjacking statute, 18
U.S.C. § 2119 (1988 ed. Supp. V). Like § 111, the carjacking statute
at issue in Jones contained subsections, which increased a defendant’s
penalty in proportion to the aggravated nature of the crime. See 18
U.S.C. § 2119(1)-(3). Under subsection 2119(1), the offense of simple
carjacking carried a maximum sentence of 15 years; under subsection
3See United States v. Duran, 96 F.3d 1495, 1511 (D.C. Cir. 1996)
(defining simple assault as the form of assault involving an attempt to put
another in fear of imminent serious bodily injury by "physical menace");
see also United States v. Chestaro, 197 F.3d 600, 605 (2d Cir. 1999)
("simple assault," as used in § 111(a), incorporates common-law defini-
tion of that term).
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2119(2), carjacking resulting in "serious bodily injury" carried a max-
imum sentence of 25 years; and under subsection 2119(3), carjacking
resulting in death yielded a sentence of up to life imprisonment.
The Jones Court acknowledged that the "look" of the carjacking
statute suggested that it established a single offense with various sen-
tencing factors, including "serious bodily injury," but it determined
that closer analysis belied that conclusion. Jones, 526 U.S. at 233.
The Court pointed out that, with the exception of subsection (1),
§ 2119’s other subsections "provide[d] for steeply higher penalties"
and conditioned those penalties "on further facts," such as serious
bodily injury "that seem quite as important as the elements in the
principal paragraph." Id.
The Jones Court then examined federal and state legislative prac-
tice, noting that "statutory drafting occurs against a backdrop . . . of
traditional treatment of certain categories of important facts, like the
degree of injury to victims of crime, in relation to particular crimes."
Id. at 234. Finding that Congress modeled the federal carjacking stat-
ute on various robbery statutes, many of which define "serious bodily
injury" as an offense element, the Court concluded that "carjacking is
a type of robbery, and serious bodily injury has traditionally been
treated . . . as defining an element of the offense of aggravated rob-
bery." Id. at 235. To further support its conclusion, the Court cited
various state robbery laws under which serious bodily injury or harm
constituted an element of aggravated robbery. See id. at 236-37 (col-
lecting statutes).
Finally, the Jones Court expressed concern that defining "serious
bodily injury" as a sentencing factor would adversely affect a defen-
dant’s constitutional rights. For, the Court posited, if "serious bodily
injury" were deemed to be a sentencing factor, then "death" would
also have to be treated as such. Id. at 243. If death were a sentencing
factor, then "a potential penalty might rise from 15 years to life on a
nonjury determination." Id. at 243-44. This "relative diminution of the
jury’s significance," the Court concluded, "would merit Sixth Amend-
ment concern." Id at 248. Relying on the rule that "where a statute is
susceptible of two constructions, by one of which grave and doubtful
constitutional questions arise and by the other of which such ques-
tions are avoided, [a court’s] duty is to adopt the latter," the Court
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held "serious bodily injury" to be an element of the offense of aggra-
vated carjacking. Id. at 239 (citing United States ex rel. Attorney Gen-
eral v. Del. & Hudson Co., 213 U.S. 366, 408 (1909), and United
States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916)).4
A few months later, in Castillo v. United States, 530 U.S. 120
(2000), the Court followed a slightly different methodology to hold
that use of a machine gun in 18 U.S.C. § 924(c) (1988 ed. Supp. V)
also stated an element of a separate offense. Although as in Jones, the
language and structure of the statute, and arguably its legislative his-
tory, "suggest[ed] a contrary interpretation," Castillo, 530 U.S. at 125,
the Court held that use of a machine gun constituted an offense ele-
ment (i) because it had not traditionally been used as a sentencing fac-
tor, id. at 126-27, (ii) because asking a jury, rather than a judge, to
determine this fact "would rarely complicate a trial or risk unfair-
ness," id. at 127, and (iii) because of the "length and severity of the
added mandatory sentence" — an increase from five to thirty years.
Id. at 131. As to this last element — the length of the added manda-
tory sentence if the defendant was found to have used a machine gun
— the Court stated that "if after considering traditional interpretive
factors, we were left genuinely uncertain as to Congress’ intent in this
regard, we would assume a preference for traditional jury determina-
tion of so important a factual matter." Id.
Most recently, in Apprendi v. New Jersey, 530 U.S. 466, 476
(2000), the Supreme Court confirmed that the possible constitutional
problem that it had identified in Jones was a reality. The Apprendi
Court, without undertaking the detailed Jones or Castillo analysis as
to whether a fact constituted an offense element or sentencing factor,
simply held that "[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reason-
able doubt." Apprendi, 530 U.S. at 490 (emphasis added). Although
the Court in Apprendi did not totally eschew the Jones or Castillo
4Additionally, the Court in Jones looked to the statute’s legislative his-
tory. It noted that while certain congressional reports spoke of "serious
bodily injury" as a "penalty factor," that history also contained "contrary
indications," and, in any event, provided no basis for ignoring the other
factors set forth above. Jones, 526 U.S. at 238.
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analysis, it did indicate that in those instances in which a fact
increased the maximum statutory penalty, "the elusive distinction
between ‘elements’ and ‘sentencing factors’" was unimportant. Id. at
494 ("[T]he relevant inquiry is one not of form, but of effect — does
the required finding expose the defendant to a greater punishment
than that authorized by the jury’s guilty verdict?"). See also id. at 501
(Thomas, J. concurring)("[I]f the legislature, rather than creating
grades of crimes, has provided for setting the punishment of a crime
based on some fact . . . that fact is also an element. No multi-factor
parsing of statutes, of the sort that we have attempted since McMillian
is necessary.")5
Whether guided by the Apprendi rule or the Jones or Castillo anal-
ysis, we can only conclude that infliction of bodily injury or use of
a dangerous or deadly weapon as used in § 111(b) are offense ele-
ments. In other words, in § 111(b), Congress created a separate
offense from those set forth in § 111(a). Whereas § 111(a) carries a
maximum penalty of three years imprisonment, the offense described
in § 111(b) carries a maximum penalty of ten years imprisonment. To
expose a defendant to this ten-year maximum penalty, the government
must charge and prove beyond a reasonable doubt at least one of the
two additional elements that defines this separate offense, specifically
(1) infliction of bodily injury or (2) use of a dangerous or deadly
weapon.
First, Apprendi compels this conclusion, because the fact of inflic-
tion of bodily injury or use of a dangerous weapon in § 111(b) "in-
creases the penalty for [the] crime" of assault on a federal officer
"beyond the prescribed statutory maximum" of three years to up to ten
years. Apprendi, 530 U.S. at 490; 18 U.S.C. § 111. See also United
States v. Promise, ___ F.3d ___, 2001 WL 732389, at *1 (4th Cir.
June 29, 2001) (en banc) (holding that Apprendi requires that drug
quantity be treated as an offense element in the context of 21 U.S.C.
§ 841 (1994)). In other words, infliction of bodily injury and use of
a dangerous weapon are exactly the kind of facts which, under the
5The Apprendi Court clarified that when a fact affects a sentence
within the allowable statutory range, the distinction between element and
sentencing factor retains significance. See Apprendi, 530 U.S. at 494
n.19.
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Apprendi rule, must be charged in the indictment and submitted to the
jury. See Apprendi, 530 U.S. at 490.
But even if Apprendi did not require the government to charge and
prove these facts because of the possibility of exposing the defendant
to a penalty greater than the statutory maximum, we would nonethe-
less conclude that these facts constitute elements of the offense of
assault on a federal officer, as defined in § 111(b), not mere sentenc-
ing factors.
We acknowledge that the "look" of § 111 suggests that the addi-
tional elements described in § 111(b) are sentencing factors, not
offense elements. Indeed, § 111(b) is set off and separately titled "En-
hanced Penalty" in bold print. See 18 U.S.C. § 111(b); United States
v. Segien, 114 F.3d 1014, 1018 (10th Cir. 1997). However, Jones and
Castillo teach that this type of language, and a statute’s resulting
"look" are not dispositive. See Chestaro, 197 F.3d at 607. Where, as
here, other factors persuasively indicate that Congress’ intent was to
create separate offense elements, a court should not rely on "[t]he title
alone" in determining whether a portion of a statute lists a penalty
enhancement or offense element. Castillo, 530 U.S. at 125; see also
Jones, 526 U.S. at 232-33.
As in Castillo and Jones, in this case other factors compel the con-
clusion that Congress intended to create a separate offense. Like the
statutes at issue in Castillo and Jones, § 111(b) "provide[s] for steeply
higher penalties," which are "condition[ed] on further facts . . . that
seem quite as important as the elements" of the principal crime found
in § 111(a). Jones, 526 U.S. at 233; see also Castillo, 530 U.S. at 131.
A defendant who commits an assault defined in § 111(a) may have his
prison sentence increased more than threefold if his crime involves
the additional crucial facts of use of a deadly weapon or infliction of
bodily injury. See 18 U.S.C. § 111(b) (carrying a maximum sentence
of 10 years imprisonment); Chestaro, 197 F.3d at 607-08 (citing
Jones, 526 U.S. at 233).
Moreover, the facts on which these increased penalties are based,
namely infliction of bodily injury or use of a dangerous weapon, are,
as in Castillo and Jones, "of the type that the states and federal gov-
ernment traditionally have considered elements of an offense rather
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than sentencing factors." Chestaro, 197 F.3d at 608. For example, in
the context of 18 U.S.C. § 113, the general federal assault statute, "se-
rious bodily injury" has been held to be an element of the offense of
aggravated assault. See United States v. Fitzgerald, 882 F.2d 397, 399
& n.2 (9th Cir. 1989) (finding an indictment sufficient for mentioning
"serious bodily injury").
State laws too traditionally treat infliction of bodily injury (or great
bodily injury) as an offense element, as opposed to a sentencing fac-
tor. See, e.g., United States v. Davis, 184 F.3d 366, 368 (4th Cir.
1999) (interpreting S.C. Code § 56-5-750(C)(1)); State v. Casanova,
767 A.2d 1189, 1197 (Conn. 2001) (infliction of physical injury on
peace officer is element of assault under Conn. Gen. Stat. Ann. § 53a-
167c(a)(1)); State v. Parolin, 770 A.2d 1204, 1207-08 (N.J. Super.
2001) (serious bodily injury is essential statutory element of aggra-
vated assault pursuant to N. J. Stat. Ann. § 2C:12-1b); People v. Cov-
ington, 19 P.3d 15, 19 (Co. 2001) (serious bodily injury is element of
second degree assault pursuant to Co. Rev. Stat. § 18-3-203(1)(d)).
Use of a dangerous weapon, such as a firearm, also typically con-
stitutes an element of an offense. See, e.g., Dillard v. Roe, 244 F.3d
758, 772-73 (9th Cir. 2001) (fact that defendant "personally used a
firearm" in inflicting corporal injury on cohabitant was an element
rather than a sentencing factor and thus had to be found by the jury
beyond a reasonable doubt); Gonzalez v. State, 585 So. 2d 932, 933
(Fla. 1991) (use of a firearm is an essential element of third degree
felony murder).
Most importantly, however, failure to define bodily injury or use
of a dangerous weapon as separate offense elements would deprive
Campbell of his "Fourteenth Amendment right to due process and the
Sixth Amendment right to trial by jury, [which] taken together entitle
a criminal defendant to a jury determination that he is guilty of every
element with which he is charged beyond a reasonable doubt."
Apprendi, 530 U.S. at 476; see also Jones, 526 U.S. at 239-48.
Accordingly, we hold that bodily injury or use of a deadly or danger-
ous weapon are essential elements of the offense of assault on a fed-
eral officer in violation of § 111(b).6 As such, they must be charged
in the indictment and proved to a jury beyond a reasonable doubt.
6We note that two of our sister circuits have recently reached the same
conclusion. See Chestaro, 197 F.3d at 608; United States v. Nunez, 180
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III.
Having concluded that bodily injury and use of a dangerous
weapon in § 111(b) are offense elements, we now turn to the question
of whether Campbell’s sentence can stand. We conclude that it can-
not.
A.
The indictment in this case alleged the use of a dangerous weapon,
but failed to allege infliction of bodily injury, nor was the element of
bodily injury submitted to the jury. The jury found Campbell guilty
of assault under § 111(a), but acquitted him of assault with a danger-
ous weapon under § 111(b).7 Nonetheless, the district court made a
finding at the sentencing hearing that Campbell inflicted bodily injury
on Button, and sentenced him to ten years under § 111(b), which is
seven years more than is permitted under § 111(a)’s three-year statu-
tory maximum. Based on this, Campbell contends that the sentence
imposed on him by the district court runs afoul of Apprendi.
Because Campbell failed to raise his Apprendi argument before the
district court, we review for plain error only. See Fed. R. Crim. P.
52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). "Rule
52(b) contains three elements that must be established before we pos-
sess the authority to notice an error not preserved by a timely objec-
tion: The asserted defect in the trial proceedings must, in fact, be
F.3d 227, 233 (5th Cir. 1999). Prior to Jones, two other courts held that
§ 111(b) stated sentencing enhancements. See United States v. Segien,
114 F.3d 1014 (10th Cir. 1997); United State v. Young, 936 F.2d 1050
(9th Cir. 1991). Since Jones, no court has so held.
7Campbell does not challenge his conviction under § 111(a), only the
sentence illegally imposed under § 111(b). He makes no claim that the
indictment, which only charged assault on a federal officer by means of
a dangerous weapon, failed to charge assault on a federal officer without
use of a dangerous weapon, or that the district court amended the indict-
ment by instructing the jury that it could find him guilty of assault, even
if it found that he had not used a dangerous weapon. Accordingly, we do
not address this issue.
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error; the error must be plain; and, it must affect the substantial rights
of the defendant." United States v. Cedelle, 89 F.3d 181, 184 (4th Cir.
1996)(citing Olano, 507 U.S. at 731-32). Even when all three ele-
ments are present, we may decline to notice an error if it does not
"‘seriously affect the fairness, integrity or public reputation of judicial
proceedings.’" Olano, 507 U.S. at 736 (quoting United States v.
Atkinson, 297 U.S. 157, 160 (1936)).
Recently, this court, sitting en banc, considered, in the context of
21 U.S.C. § 841, whether the failure to charge drug quantity in the
indictment and submit the quantity issue to the jury required that we
vacate the sentence and remand for resentencing under Apprendi. See
Promise, 2001 WL 732389, at *1. The court was sharply divided and
the decision contained five separate opinions. While a majority of the
judges voted to affirm Promise’s conviction, they did so on differing
grounds.
Judge Wilkins announced the judgment of the court. In his opinion,
Judge Wilkins concluded that Apprendi mandated that drug quantity
be treated as an element of an aggravated drug offense under § 841,
and that the failure to charge this offense element in the indictment
and submit this issue to the jury constituted plain error. See id. at *8.
Judge Wilkins also concluded that the error affected a defendant’s
substantial rights when the defendant’s sentence for conspiring to dis-
tribute a controlled substance exceeded the twenty-year statutory
maximum in 21 U.S.C. § 841(b)(1)(C). See id. A majority of the
court, made up of Judges Widener, Williams, Michael, Motz, Traxler
and King, joined these parts of Judge Wilkins’s opinion.
A different majority of the court voted nonetheless to affirm the
defendant’s conviction. Four judges, Chief Judge Wilkinson, and
Judges Niemeyer, Luttig and Gregory, writing in three separate opin-
ions, affirmed on the ground that, in the context of § 841, drug quan-
tity was properly viewed as a sentencing factor, and not an offense
element that needed to be charged in the indictment or submitted to
the jury, and therefore the maximum sentence permitted by the statute
was life imprisonment.
Judges Wilkins, Williams and Traxler also voted to affirm Prom-
ise’s conviction, although on a different basis. These three members
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of the court agreed that the failure to treat drug quantity as an offense
element in § 841 constituted plain error affecting the defendant’s sub-
stantial rights. They nonetheless voted to affirm the conviction, con-
cluding — on the basis of "a balancing of numerous considerations,"
including the strength of the government’s evidence and the fact that
a pre-trial notice of drug quantity was provided to the defendant —
that the error should not be corrected, id. at *10 n.9; Chief Judge Wil-
kinson joined this portion of their opinion on the ground that, assum-
ing arguendo "there was an error in the proceedings below," it did not
merit reversal under Olano. Id. at *11. These judges did not address
precisely how they weighed these considerations, or which consider-
ation was dispositive. See id. at *35 n.3 (Motz, J., concurring in part
and dissenting in part). However, they repeatedly characterized the
pretrial notice as "critical," id. at *10 & n.9, and did not respond to
the dissent’s suggestion that, in light of this emphasis, absent such
pretrial notice, "even overwhelming and uncontroverted evidence of
a defendant’s guilt" would be an "insufficient" basis "not to notice"
such an error. Id. at *35 n.3 (Motz, J., concurring in part and dissent-
ing in part). Given this, we believe that such notice is indeed critical
to these judges’ decision as to whether to correct the error.
Four members of the court, Judges Widener, Michael, King and
myself, dissented from the judgment in Promise, concluding that this
court would abuse its discretion in failing to notice and correct the
plain error regardless of the strength of the prosecution’s evidence or
whether pre-trial notice was provided to the defendant, and so voted
to vacate the defendant’s illegal sentence and remand for resentenc-
ing. See id. at *33 (Motz, J., concurring in part and dissenting in part).
Moreover, in an opinion concurring in the judgment, two other mem-
bers of the court similarly indicated their view that if drug quantity
were an element (and they did not believe it was), failure to charge
it constituted plain error that had to be corrected. See id. at *13 (Nie-
meyer, J., concurring in the judgment, joined by Gregory, J.).
Applying Promise here, it is clear that imposition of a ten-year sen-
tence on Campbell for an offense element — infliction of bodily
injury — that was neither charged in the indictment nor proved to the
jury constitutes plain error. In Promise, a majority of this court held
that Apprendi mandates this result. Moreover, this error affects Camp-
bell’s substantial rights, just as a majority of this court held that a sim-
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ilar error affected Promise’s substantial rights, because it exposes him
to a term of imprisonment greater (here more than three times greater)
than the statutory maximum for the crime of which he was convicted,
namely assault on a federal officer under § 111(a). The only remain-
ing issue, then, is whether we should exercise our discretion to correct
the error.
No matter what view is taken as to the proper approach to this ulti-
mate question, i.e., whether pre-trial notice and the strength of the
government’s evidence have any place in determining whether to cor-
rect this plain error, in this case the result is the same — the plain
error must be corrected. First, under the approach and for the reasons
articulated by the four dissenters in Promise, the error must be cor-
rected because, regardless of any pre-trial notice or strong govern-
ment evidence, "sentencing a man for a crime for which he was
neither charged nor convicted affects the fairness, integrity and public
reputation of judicial proceedings." Id. at *33 (Motz, J., concurring in
part and dissenting in part). See also id. at *13 (Niemeyer, J., concur-
ring, joined by Gregory, J.). Moreover, if a pretrial notice is indeed
of "critical" import, as other members of the Promise court believed,
id. at *10 & n.9, the plain error in this case must be corrected because
the government provided no pretrial notice informing Campbell that
he could be held accountable for infliction of bodily injury.8 Thus,
that factor, which was "critical" to the decision of the members of the
majority that declined to recognize the error in Promise, is absent
here.
In sum, under either approach, we must conclude that the plain
error affecting Campbell’s substantial rights — failure to charge in
8This lack of notice is no small matter. The allegations in the indict-
ment alerted Campbell that the government sought to prove that he used
a dangerous weapon — specifically pepper spray — in assaulting Officer
Button and that if the government succeeded in proving this, he could
receive a sentence of up to ten years. With such notice, Campbell was
able to mount a defense to this charge and managed to convince the jury
that pepper spray did not constitute a dangerous weapon within the
meaning of § 111(b). Having no notice that the government would seek
to charge him with infliction of bodily injury, however, Campbell had no
reason to present evidence to the jury controverting such a charge.
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the indictment an essential element of the offense of assault on a fed-
eral officer under § 111(b) (infliction of bodily injury) — "‘seriously
affect[ed] the fairness, integrity or public reputation of judicial pro-
ceedings.’" Olano, 507 U.S. at 736 (quoting United States v. Atkin-
son, 297 U.S. 157, 160 (1936)). Accordingly, we exercise our
discretion to notice this error, and vacate the § 111(b) sentence and
remand for re-sentencing under § 111(a).
B.
Campbell received a total sentence of life imprisonment in this case
because the district court found that his § 111(b) conviction was a
third strike under the federal "three strikes" law, 18 U.S.C. § 3559(c).
In relevant part, § 3559(c) mandates a life sentence for any third con-
viction punishable by ten or more years imprisonment and involving
an element of "use, attempted use, or threatened use of physical
force." 18 U.S.C. § 3559(c)(2)(F). Because we have determined that
Campbell was convicted only of assault on a federal officer under
§ 111(a), which carries a maximum penalty of three years, and that
Campbell’s ten-year sentence under § 111(b) was in error, this con-
viction cannot serve as a "third strike" for the purposes of § 3559(c).
Accordingly, we also vacate Campbell’s life sentence under that stat-
ute.
IV.
For the reasons set forth above, we vacate Campbell’s sentences
under 18 U.S.C. § 111(b) and 18 U.S.C. § 3559(c) and remand for
resentencing under 18 U.S.C. § 111(a) to a sentence not exceeding
three years imprisonment.
VACATED AND REMANDED
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