United States of America v. Connes B. Campbell Ii

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 29, 2007*
Decided April 3, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-3418
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CONNES B. CAMPBELL II,
Defendant-Appellant.
Appeal from the United
States District Court for the
Western District of Wiscon-
sin.
No. 06-CR-89-C-01
Barbara B. Crabb, Chief
Judge.
Order
Connes Campbell pleaded guilty to possessing cocaine base with intent to dis-
tribute. 21 U.S.C. §841(a)(1). He was sentenced to 188 months’ imprisonment, the
lowest point in the range calculated under the Sentencing Guidelines. After filing a
notice of appeal at his client’s behest, counsel has moved to withdraw under Anders
v. California, 386 U.S. 738 (1967).
Counsel first considers whether Campbell could contest his classification as a ca-
reer offender by the court (as opposed to the jury) and properly concludes that such
an argument would be frivolous. Even if Almendarez-Torres v. United States, 523
U.S. 224 (1998), were to be overruled—a step beyond the power of a district judge or
court of appeals—Campbell could not benefit because career-offender designation is
* After examining the briefs and the record, we have concluded that oral argument is unneces-
sary. See Fed. R. App. P. 34(a); Cir. R. 34(f).

-- 1 of 2 --

No. 06-3418 Page 2
not part of the offense but is only a sentencing consideration, about which the re-
medial portion of United States v. Booker, 543 U.S. 220 (2005), allows the judge to
make a decision on the preponderance of the evidence.
Other means of challenging the sentence would be equally frivolous, counsel
properly concluded. For example, when choosing a sentence the judge was entitled
to consider other charges pending against Campbell, see U.S.S.G. §4A1.3(a)(2)(D),
and to treat each gram of crack cocaine as equivalent to 100 grams of powder co-
caine. See United States v. Miller, 450 F.3d 270, 275 (7th Cir. 2006). The approach
of Miller is followed by most courts of appeals, See, e.g., United States v. Leatch,
2007 U.S. App. LEXIS 6619 (5th Cir. Mar. 22, 2007) (collecting authority). Although
two circuits have held that district judges are free to deviate from this statutory ra-
tio after Booker, see United States v. Pickett, 475 F.3d 1347 (D.C. Cir. 2007); United
States v. Gunter, 462 F.3d 237 (3d Cir. 2006), none has held that deviation is legally
required. And there is no basis for treating the 188-month sentence as unreasonably
high for this crime by a person with Campbell’s extensive criminal record. No mat-
ter what Rita v. United States, cert. granted, 127 S. Ct. 551 (2006), ultimately holds
about the role of the Guidelines in assessing the reasonableness of sentences, this
particular sentence is reasonable without any presumption in favor of the Guide-
lines. Cf. United States v. Gama-Gonzalez, 469 F.3d 1109 (7th Cir. 2006).
Campbell was invited to respond to counsel’s motion, see Circuit Rule 51(b), and
did so. Campbell proposes to argue that 18 U.S.C. §3231, which gives district judges
jurisdiction to hear criminal prosecutions, has no legal effect because the House and
Senate did not vote on it in the same session of Congress. This belief is factually in-
correct—the House passed a version of this legislation in the First Session of the
80th Congress, after which the Senate passed an amended version in the Second
Session, and the House then voted to pass the bill as amended in the Senate—and
legally irrelevant for at least two reasons: (i) The enrolled bill rule prevents looking
behind laws in the way that Campbell proposes. See Marshall Field & Co. v. Clark,
143 U.S. 649 (1892). (ii) A Session of Congress is not an independent legislative
unit. The two chambers need not adopt legislative language in the same Session,
nor need they use the same bill numbers. It is enough that the two chambers ap-
prove the same language in the same Congress.
Counsel’s motion to withdraw is granted, and the appeal is dismissed as frivo-
lous.

-- 2 of 2 --