Robert Campbell v. United States of America

*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0115P (6th Cir.)
File Name: 04a0115p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
ROBERT CAMPBELL,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
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No. 03-1178
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 01-73211—Arthur J. Tarnow, District Judge.
Argued: March 18, 2004
Decided and Filed: April 20, 2004
Before: COLE and GILMAN, Circuit Judges;
SCHWARZER, Senior District Judge.*
_________________
COUNSEL
ARGUED: Dennis J. Clark, PLUNKETT & COONEY,
Detroit, Michigan, for Appellant. Michael R. Mueller,
2 Campbell v. United States No. 03-1178
UNITED STATES ATTORNEY, Detroit, Michigan, for
Appellee. ON BRIEF: Dennis J. Clark, PLUNKETT &
COONEY, Detroit, Michigan, for Appellant. Michael R.
Mueller, UNITED STATES ATTORNEY, Detroit, Michigan,
for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Robert Campbell
appeals from the district court’s denial of his post-conviction
motion to vacate his sentence. For the reasons set forth
below, we AFFIRM the judgment of the district court.
I. BACKGROUND
After two mistrials as a result of hung juries, a third grand
jury indicted Campbell on the following three counts:
(1) conspiracy to possess controlled substances with the intent
to distribute and conspiracy to actually distribute the
c o n t r o l l ed s u b s t a n c e s , a ll in violation o f
21 U.S.C. §§ 841(a)(1) and 846; (2) aiding and abetting the
possession of cocaine with the intent to distribute, in violation
of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (3) aiding
and abetting the possession of heroin with the intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2. In July of 1998, a jury found Campbell guilty
on all counts. The district court sentenced Campbell to 324
months of imprisonment and 5 years of supervised release.
Campbell appealed, alleging numerous errors. In October
of 2000, this court issued an amended opinion that affirmed
his conviction and sentence by a 2 to 1 vote, with the dissent
favoring a new trial because of the alleged prosecutorial
misconduct that occurred during closing argument.

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No. 03-1178 Campbell v. United States 3
Campbell petitioned to vacate his sentence pursuant to
28 U.S.C. § 2255 in August of 2001. The case was referred
to a magistrate judge, who issued a 30-page Report and
Recommendation (R&R) concluding that the motion should
be denied. Over Campbell’s objections, the district court
adopted the R&R. Campbell then applied for a certificate of
appealability as to nine issues, all of which the district court
certified. In January of 2003, Campbell filed a timely notice
of appeal.
II. ANALYSIS
A. Ineffective-assistance-of-counsel claims
Campbell asserts numerous ineffective-assistance-of-
counsel claims on appeal. To prevail on these claims, he
must establish that (1) his “counsel’s performance fell below
an objective standard of reasonableness, and (2) there is a
reasonable probability that, but for the deficiency, the
outcome of the proceedings would have been different.”
Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003).
“The objective standard of reasonableness is a highly
deferential one and includes a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance.” Mason v. Mitchell, 320 F.3d 604,
616-17 (6th Cir. 2003) (quotation marks omitted). A
“reasonable probability” has been defined by the Supreme
Court as “a probability sufficient to undermine confidence in
the outcome.” Strickland v. Washington, 466 U.S. 668, 694
(1984).
When deciding ineffective-assistance claims, courts need
not address both components of the inquiry “if the defendant
makes an insufficient showing on one.” Id. at 697. “If it is
easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so,
that course should be followed.” Id. These claims, as part of
Campbell’s motion to vacate his sentence under 28 U.S.C.
§ 2255, are reviewed de novo. Griffin, 330 F.3d at 736.
4 Campbell v. United States No. 03-1178
1. Ineffectiveness based upon alleged Speedy Trial Act
violation
Campbell first argues that the district court erred in denying
his claim that his counsel rendered ineffective assistance by
not moving for a dismissal of the indictment based upon
alleged violations of the Speedy Trial Act. 18 U.S.C.
§§ 3161-74. The Act requires that a criminal defendant be
brought to trial within 70 days after the filing of an indictment
or an arraignment, whichever is later. 18 U.S.C. § 3161(c)(1).
A retrial that follows a mistrial must start “within 70 days
from the date the action occasioning the retrial becomes final
. . . .” 18 U.S.C. § 3161(e). If a defendant is not brought to
trial within 70 days, taking into account excludable time
periods under the Act, the district court is obligated to dismiss
the indictment on the defendant’s motion. 18 U.S.C.
§ 3162(a)(2); United States v. Jenkins, 92 F.3d 430, 438 (6th
Cir. 1996). The dismissal may be either with or without
prejudice. Id.
Campbell alleges the following three violations of the
Speedy Trial Act: (1) 83 days elapsed between the end of his
first trial and the start of his second, (2) approximately 157
days elapsed between the second mistrial and the dismissal of
the second indictment, and (3) 78 days elapsed between the
dismissal of the second indictment and Campbell’s
arraignment on the third superseding indictment. The
magistrate judge’s R&R concludes that even if violations of
the Speedy Trial Act did occur, Campbell cannot demonstrate
that he was prejudiced as required by Strickland. For the
reasons that follow, we agree.
In his brief, Campbell asserts that the alleged violations of
the Speedy Trial Act prejudiced him, but he provides little
explanation and no authority to support his contentions.
Campbell says that the prejudice “is obvious” and that “there
clearly was prejudice suffered by Campbell.” But he does not
allege any specific prejudice, such as a witness becoming
unavailable.

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No. 03-1178 Campbell v. United States 5
Under the Speedy Trial Act, courts must consider the
following three factors when determining whether to dismiss
an indictment with or without prejudice: “[1] the seriousness
of the offense; [2] the facts and circumstances of the case
which led to the dismissal; and [3] the impact of a
reprosecution on the administration of [the Act] and on the
administration of justice.” 18 U.S.C. § 3162(a)(1). As
explained in the R&R, “[e]ach of these factors would have
counseled a dismissal without prejudice” in Campbell’s case:
Defendant was charged with involvement [in] an
extensive, serious drug distribution conspiracy, for which
he was sentenced to nearly 30 years’ imprisonment. As
to the second factor, the delays in defendant’s case were
not extensive and were occasioned in part by the
complexity of the procedural issues involved, including
two previous hung juries and a reindictment because of
an improperly constituted grand jury. Further, there is no
evidence of bad faith or any attempt to take advantage of
the delay on the part of the prosecution. Finally, as to the
third factor, defendant does not allege that he suffered
any actual prejudice as a result of the delay, and there is
no allegation that the government engaged in any
improper behavior which must be deterred in order to
insure compliance with the Act. In these circumstances,
any dismissal under the Act would have been without
prejudice.
We have no basis to fault the magistrate judge’s analysis.
Because Campbell cannot show that he was prejudiced by his
trial counsel’s failure to request dismissal for the alleged
violations of the Speedy Trial Act, we affirm the district
court’s denial of relief to Campbell on this claim.
2. Ineffectiveness based upon failure to request a
downward departure
Campbell next argues that his trial counsel rendered
ineffective assistance by failing to request a downward
6 Campbell v. United States No. 03-1178
departure at sentencing based upon Campbell’s crime-free
post-offense conduct and based upon the disproportionality
between his sentence and those of his codefendants. Neither
post-offense behavior nor disproportionality, however, is
mentioned in the Sentencing Guidelines as a basis for
departure. U.S. Sentencing Guidelines §§ 5K2.1-.21; see
Koon v. United States, 518 U.S. 81, 96 (1996) (noting that a
sentencing court “must bear in mind the [Sentencing]
Commission’s expectation that departures based on grounds
not mentioned in the Guidelines will be highly infrequent”).
Under the Sentencing Guidelines, the sentencing court may
impose a sentence below the guideline range where a
mitigating circumstance exists “of a kind, or to a degree, not
adequately taken into consideration by the Sentencing
Commission in formulating the guidelines that should result
in a sentence different from that described.” U.S. Sentencing
Guidelines Manual § 5K2.0 (quotation marks omitted). The
R&R and the government both note that neither post-offense
behavior nor disproportionality is mentioned in the
Sentencing Guidelines as a basis for departure. See U.S.
Sentencing Guidelines Manual § 5H1.1-.12 (listing “certain
offender characteristics” relevant “to the determination of
whether a sentence should be outside the applicable guideline
range”).
Campbell argues, however, that his lack of involvement in
drug activity or other criminal conduct since his arrest rises to
the level of “extraordinary post-offense behavior.” But as this
court noted in United States v. Biehl,
[s]ome degree of presentence rehabilitation is to be
expected from a penitent defendant, whether due to a true
acceptance of responsibility or from one who simply
wants to “put his best foot forward” at sentencing with
hopes of receiving leniency from the sentencing court.
Furthermore, in order to keep the temporary liberty
defendant was given by delaying his sentence for almost
three years, abiding by the fairly typical terms of his

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No. 03-1178 Campbell v. United States 7
presentence release is not unexpected. As the First
Circuit stated, “such predictable reactions, while
laudable, fall shy of what we believe is necessary to take
cases out of the heartland.”
Nos. 98-3318, 98-3346, 1999 WL 98600, at *3 (6th Cir.
Jan. 25, 1999) (unpublished opinion) (quoting United States
v. Sklar, 920 F.2d 107, 117 (1st Cir. 1990)). Because
Campbell failed to show that he was prejudiced by his
counsel’s failure to move for a downward departure based
upon either disproportionality or post-offense behavior, we
affirm the district court’s denial of relief to Campbell on this
ground.
3. Ineffective assistance based upon trial proceedings
Campbell also argues that the following errors occurred
during the trial that deprived him of his Sixth Amendment
right to the effective assistance of counsel:
a. Failure to object to government witness’s reference
to organized crime
Campbell contends that his trial counsel was ineffective for
failing to object and move for a mistrial after government
witness Richard Carroll, a New York City police officer,
testified that he was assigned to the Organized Crime Control
Bureau at the time of his testimony. This testimony,
according to Campbell, “implicitly linked Campbell to this
criminal group which has [] strongly negative connotations in
the minds of most citizen jurors.” The R&R’s thorough
analysis of this issue explains why Campbell is not entitled to
relief on this basis:
Although defendant contends that this remark was
“irrelevant, inflammatory and prejudicial,” he does not
state how he was prejudiced by this single reference to
organized crime. Notably, the comment was in no way
connected to his case, but was simply part of background
8 Campbell v. United States No. 03-1178
testimony concerning the witness’s current employment.
Nowhere in his testimony did Carroll relate any of the
allegations against defendant to organized crime, and he
also testified that he was assigned to the Street Unit, not
the Organized Crime Control Bureau, at the time he
arrested [Campbell’s] coconspirator Carol Bayless. Thus,
there is not a reasonable probability that the comment
influenced the jury’s verdict in any manner. See, e.g.,
United States v. Catalano, No. 91-50372, 1992 WL
212322, at *2 (9th Cir. Sept. 3, 1992) (per curiam)
(defendant not denied a fair trial by prosecutor’s
comments concerning organized crime where references
were isolated and not inflammatory); United States v.
Thirion, 813 F.2d 146, 156 (8th Cir. 1987) (defendant
not denied a fair trial by question relating to whether
defendant, an attorney, had represented an organized
crime figure; the matter came up only once during the
course of a lengthy trial and defendant’s answer linked
the client, and not the defendant, to organized
crime) . . . .
Because Campbell fails to show that this comment prejudiced
him, we affirm the district court’s denial of relief to Campbell
on this issue.
b. Prejudicial remarks to the jury
Campbell argues that his trial counsel rendered ineffective
assistance by making prejudicial remarks to the jury during
his opening and closing statements. In his opening statement,
for example, Campbell’s counsel stated:
Perform the duties that your oath says that you will do.
And whatever your verdict is, it is. If your verdict
ultimately is guilty, so be it; it’s guilty. That’s what our
system is about . . . .
Campbell contends that his counsel’s comments evidenced a
“lack of concern for the verdict” and that his counsel should

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No. 03-1178 Campbell v. United States 9
have instead argued “that a reasonable doubt, or doubts,
should arise from the evidence . . . .”
As noted in the R&R, these comments “do not amount to
constitutionally ineffective assistance”:
On the contrary, counsel repeatedly emphasized the
burden of proof, requiring the prosecutor to prove the
charges against petitioner beyond a reasonable doubt. He
also repeatedly stated that, in his view and for the reasons
he explained at length to the jury, the prosecutor had not
met this burden. While counsel’s discussion of the
burden of proof was perhaps not as eloquent as it could
have been, counsel at all times acted as an advocate for
defendant and pressed defendant’s case. In these
circumstances, the comments of counsel do not amount
to constitutionally ineffective assistance.
We agree, and accordingly affirm the district court’s denial of
relief to Campbell on this ground.
c. Failure to propose defense-theory instruction
Campbell argues that his counsel’s failure to request a jury
instruction explaining his theory of the case amounted to the
ineffective assistance of counsel. In his argument, however,
Campbell does not demonstrate how he was prejudiced by
this omission. The R&R explains that Campbell
cannot show that he was prejudiced by counsel’s failure
because his theory was adequately conveyed to the jury
by the Court’s instructions on the elements of the
government’s charges and the burden of proof.
Defendant’s theory of the case was a simple denial of
involvement in the conspiracy.
The R&R’s reasoning is persuasive and we therefore affirm
the district court’s denial of relief to Campbell on this claim.
10 Campbell v. United States No. 03-1178
d. Failure to call character witnesses
Campbell contends that his case presented the jury with a
classic credibility question because the government asserted
that he was involved in drug activity and Campbell denied
those allegations. He argues that character witnesses
“testifying to [his] reputation for truthfulness and veracity
would have been significant.” According to Campbell,
character witnesses were available to testify on his behalf, but
his trial counsel failed to call them. Campbell concludes that
this failure amounts to the ineffective assistance of counsel.
Both the R&R and the government note, however, that
Campbell failed to provide any information regarding “what
witnesses should have been examined more fully or what
additional witnesses should have been called.” Consequently,
Campbell cannot rebut the strong presumption that his
attorney’s actions were the product of sound trial strategy.
Strickland v. Washington, 466 U.S. 668, 690 (1984) (“[T]he
court should recognize that counsel is strongly presumed to
have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment.”). We accordingly affirm the district court’s denial
of relief to Campbell on this basis.
e. Eliciting of prejudicial testimony
Campbell argues that his trial counsel rendered ineffective
assistance by eliciting prejudicial testimony from three
government witnesses on cross-examination. During the
cross-examination of a Drug Enforcement Agency (DEA)
agent, Campbell’s trial counsel asked whether the agent felt
that Campbell “may have been somehow with or involved
with” the other members of the alleged conspiracy. Campbell
contends that such testimony indicating a connection between
Campbell and “admitted drug traffickers . . . could only have
inured to Campbell’s detriment.” With regard to this
testimony, the R&R notes that the questions preceding and
following the challenged question show that Campbell’s trial

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No. 03-1178 Campbell v. United States 11
counsel was attempting to cast doubt upon the DEA agent’s
belief:
Counsel was trying to show that the agent’s belief was
not credible given that he did not have the [car that
Campbell was traveling in] followed by another agent
when it left the motel parking lot [where the other
coconspirators were]. Counsel asked a number of
questions establishing this fact, as well as the fact that the
agent did not see defendant carrying anything either to or
from the room in which the other conspirators were
apparently conducting the transaction.
Campbell next argues that his counsel’s cross-examination
of a police officer was improper because an inquiry as to
where the police officer had previously seen a picture of
Campbell led the officer to respond that he had “seen a
picture on a prior narcotic raid.” This answer is most likely
not what counsel expected, but, as the R&R notes, the
question was part of a legitimate strategy on the part of
Campbell’s attorney to question the officer about his
observations and identification of Campbell.
Finally, Campbell argues that his defense counsel’s
question to a DEA agent about whether he was “relying on
the word of government witnesses Carol Bayless, Orlando
Bayless, Larry Anderson, and Christopher Owens” was
improper given that the DEA agent answered: “Not solely the
fact of the people that you were discussing.” Campbell
contends that this answer implied that there were other
witnesses and other evidence that had not been presented at
trial and that such evidence would have been deemed
improper had it been elicited by the prosecution. Again, we
agree with the R&R’s analysis, which is as follows:
This isolated statement came after counsel elicited
repeatedly from the agent that he was, in fact, relying
primarily on the word of the government witnesses, and
that he had no independent evidence, through
12 Campbell v. United States No. 03-1178
surveillance, to indicate that the defendant was involved
in the crime. In light of counsel’s successful cross-
examination, it is difficult to see how this isolated
statement would have, in defendant’s view, [led] the jury
to conclude that there were other witnesses who did not
testify.
The R&R reasoned overall that
[w]hile counsel’s questions to the witnesses may
illustrate a classic example of the first rule of cross-
examination; don’t ask a question unless you know what
the answer will be, the only issue for the Court is
whether counsel’s conduct in asking the question fell
below an objective standard of reasonableness.
We agree with the R&R’s conclusion that Campbell has
failed to show that his counsel’s performance was deficient
and therefore affirm the district court’s denial of relief to
Campbell on this issue.
f. Failure to impeach witness Orlando Bayless
Campbell contends that his trial counsel’s failure to
impeach Orlando Bayless—a government witness and one of
Campbell’s coconspirators—constituted the ineffective
assistance of counsel. He argues that his trial counsel should
have impeached Bayless regarding inconsistencies between
Bayless’s testimony at Campbell’s second and third trials
concerning the amount of money Campbell used to purchase
the drugs. Campbell also contends that his trial counsel
should have impeached Bayless with the statement that
Bayless initially gave to the police, in which he denied any
knowledge of the money seized by the police.
We agree with the R&R’s analysis and conclusion on this
issue, which is as follows:

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No. 03-1178 Campbell v. United States 13
It is true that counsel could have chosen to attack Bayless
through the inconsistencies in his testimony. However,
the inconsistencies identified by defendant were
relatively minor, addressing whether defendant had
brought $70,000 or $80,000 to the motel. Counsel
instead chose to focus his attack on Bayless on the
substantial sentence reduction Bayless was hoping to
receive in exchange for his testimony, and on Bayless’s
significant drug related activity. This was a reasonable
trial strategy. Further, defendant is unable to establish
that he was prejudiced by counsel’s failure to question
Bayless about these minor inconsistencies.
Accordingly, we affirm the district court’s denial of relief to
Campbell on this issue.
g. Failure to object to alleged prosecutorial
misconduct
Campbell argues that his trial counsel’s failure to object to
several instances of alleged prosecutorial misconduct during
the government’s closing argument and to move for a mistrial
based upon that alleged misconduct constituted the ineffective
assistance of counsel. Specifically, Campbell contends that
the prosecutor improperly (1) vouched for the credibility of
the government’s witnesses, (2) expressed his personal
opinion as to Campbell’s guilt, and (3) made inflammatory
emotional appeals to the jury.
Campbell raised these identical claims as substantive issues
in his direct appeal. A prior panel of this court held that the
prosecutor’s remarks were isolated and that “[e]ven if the
closing argument improperly appealed to the emotions of the
jury, the error, if any, was not plain because there was ample
evidence in the record to convict Robert.” United States v.
Campbell, Nos. 98-1782, 98-2174, 2000 WL 1597858, at *4
(6th Cir. Oct. 19, 2000) (unpublished opinion). In Campbell’s
§ 2255 proceedings, the magistrate judge analyzed the claim
of ineffective assistance of counsel based upon the alleged
14 Campbell v. United States No. 03-1178
prosecutorial misconduct and noted that this court had
rejected the substantive claims on direct appeal. Given this
court’s resolution of these claims, the R&R concluded that
Campbell could not show that his counsel was deficient or
that he was prejudiced by his counsel’s failure to object or
move for a mistrial.
The district court disagreed with the magistrate’s R&R on
this point, rejecting “that portion of the R&R that states the
prosecutor’s statements did not rise to prosecutorial
misconduct.” “[I]n the absence of a pronouncement from the
Sixth Circuit on this case,” the district court said that it
“would have found prosecutorial misconduct.”
We need not resolve this difference of opinion between the
magistrate judge and the district judge, especially because we
do not read this court’s prior decision as absolving the
prosecutor of any misconduct. The earlier decision on this
issue is instead based upon the isolated nature of the remarks
and the lack of prejudice to Campbell. To succeed on his
ineffective assistance of counsel claim, Campbell must
demonstrate “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 694 (1984). This he has been
unable to do. In the case before us, no less than four members
of the alleged drug conspiracy testified against Campbell at
trial. Given the overwhelming evidence establishing
Campbell’s guilt, we believe that he would not have been able
to show that, but for his attorney’s failure to object to the
prosecutor’s alleged misconduct, the result would have been
different. We accordingly affirm the district court’s denial of
relief to Campbell on this issue.
h. Ineffective assistance based upon the cumulative
effect of all alleged errors
Campbell’s final ineffective-assistance-of-counsel claim is
that the “numerous errors concerning matters of great

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No. 03-1178 Campbell v. United States 15
importance . . . had to have [had] a substantial effect on the
jury.” We acknowledge that trial-level errors that would be
considered harmless when viewed in isolation of each other
might, when considered cumulatively, require reversal of a
conviction. United States v. Parker, 997 F.2d 219, 221 (6th
Cir. 1993). But we also agree with the R&R that “the
accumulation of non-errors cannot collectively amount to a
violation of due process.” See McKinnon v. Ohio, No. 94-
4256, 1995 WL 570918, at *12 (6th Cir. Sept. 27, 1995)
(unpublished opinion) (quoting United States v. Rivera, 900
F.2d 1462, 1471 (10th Cir.1990) (“[C]umulative-error
analysis should evaluate only the effect of matter determined
to be in error, not the cumulative effect of non-errors.”);
United States v. Lumpkin, 192 F.3d 280, 290 (2d Cir. 1999)
(“[T]he accumulation of non-errors does not warrant a new
trial.”).
Because Campbell has not shown that any of the alleged
instances of ineffective assistance of counsel deprived him
“of a fair trial, a trial whose result is reliable[,]” Strickland,
466 U.S. at 687, he cannot show that the accumulation of
these non-errors warrant relief. We therefore affirm the
district court’s judgment on this issue.
B. Apprendi claim
In a completely difference line of attack, Campbell argues
that his sentence violates the rule established by the Supreme
Court in Apprendi v. New Jersey, 530 U.S. 466 (2000). In
Apprendi, the Supreme Court 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 reasonable doubt.”
Id. at 490. This court held in United States v. Page, 232 F.3d
536, 542-43 (6th Cir. 2000), that Apprendi also applies to the
determination as to the amount of drugs necessary to impose
the mandatory minimum sentences provided in 21 U.S.C.
841(b)(1). Apprendi does not require that a precise amount of
drugs be found by the jury; it suffices that the jury finds
16 Campbell v. United States No. 03-1178
beyond a reasonable doubt the minimum amount specified in
the indictment and that “the ultimate sentence does not exceed
the statutory maximum for this amount.” United States v.
Zidell, 323 F.3d 412, 429 (6th Cir. 2003).
The government argues that Campbell failed to raise his
Apprendi claim either in the trial court or on direct appeal.
But Campbell was tried and sentenced in 1998 before
Apprendi and its precursor, Jones v. United States, 526 U.S.
227, 243 n.6 (1999) (stating Apprendi’s general rule), were
decided. This court has noted that a defendant’s objection to
the quantity of drugs attributed to him might suffice to
preserve an Apprendi challenge for appeal. United States v.
Stewart, 306 F.3d 295, 311 (6th Cir. 2002).
The present case presents a different procedural posture,
however, in that Campbell is arguing that by timely objecting
on direct appeal to the drug quantities, he preserved his
Apprendi claim for his § 2255 proceedings. Apprendi was
decided in June of 2000, after oral argument in Campbell’s
direct appeal, but a few months before this court issued its
decision. Campbell therefore could have cited Apprendi as
supplemental authority while his direct appeal was pending.
Fed. R. App. P. 28(j) (“If pertinent and significant authorities
come to a party’s attention after the party’s brief has been
filed—or after oral argument but before decision—a party
may promptly advise the circuit clerk by letter, with a copy to
all other parties, setting forth the citations.”) (Emphasis
added). He in fact failed to do so.
Because our ultimate disposition of this issue is not
dependent on whether or not Campbell preserved his
Apprendi challenge, we will assume without deciding that he
did. The parties do not dispute that if Apprendi applies to this
case, then the quantity of drugs Campbell allegedly possessed
should have been submitted to the jury and proved beyond a
reasonable doubt. Despite this, Apprendi errors are
considered to be trial-type errors subject to harmless-error
review. United States v. Copeland, 321 F.3d 582, 603 (6th

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No. 03-1178 Campbell v. United States 17
Cir. 2003). Thus, if the government “can demonstrate beyond
a reasonable doubt that the jury would have found the
defendant liable for the drug quantity at issue in sentencing,
this court must consider the error harmless and sustain the
defendant’s sentence.” Id.
Campbell’s 324-month sentence was subject to the
enhanced sentencing range governed by 21 U.S.C.
§ 841(b)(1)(A), which increases the range of a defendant’s
sentence from no mandatory minimum and a 20-year
maximum prescribed in 21 U.S.C. § 841(b)(1)(C) to a
mandatory minimum of 10 years and a maximum of life if the
conviction involves more than one kilogram of heroin or
more than five kilograms of cocaine. The increase in
Campbell’s sentencing range, therefore, was attributable to
the amounts of heroin and cocaine involved in the conspiracy.
We agree with the R&R’s conclusion that once the jury found
beyond a reasonable doubt that Campbell was involved in the
conspiracy, “it could have had no doubt that the conspiracy
involved more than one kilogram of heroin and more than
five kilograms of cocaine.”
The police seized 34 kilograms of cocaine and 2 kilograms
of heroin on a single occasion from one of Campbell’s
coconspirators, to say nothing of the 150 kilograms or more
of cocaine and heroin proven to be involved in the overall
conspiracy. “If this jury was going to convict [Campbell] at
all—which it plainly did— there is simply no way on this
record that it could have failed to find that he was conspiring
to distribute” one kilogram or more of heroin and five
kilograms or more of cocaine. United States v. Nance,
236 F.3d 820, 826 (7th Cir. 2000). Accordingly, we affirm
the district court’s denial of relief to Campbell on his
Apprendi claim.
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the
judgment of the district court.

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