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United States v. Campbell

United States Court of Appeals, Ninth Circuit

September 11, 2019

United States of America, Plaintiff-Appellee,
v.
Roger William Campbell II, AKA Roger William Campbell, Defendant-Appellant.

          Argued and Submitted September 12, 2018 San Francisco, California

          Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding No. 2:09-cr-01297-SRB-1

          Daniel L. Kaplan (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Defendant-Appellant.

          Caitlin B. Noel (argued), Assistant United States Attorney; Krissa M. Lanham, Deputy Appellate Chief; Elizabeth A. Strange, First Assistant United States Attorney; United States Attorney's Office, Phoenix, Arizona; for Plaintiff-Appellee.

          Before: Marsha S. Berzon, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.

         SUMMARY[*]

         Criminal Law

         Affirming a sentence imposed upon revocation of multiple supervised release terms, the panel held that neither the negative pregnant principle nor the rule of lenity deprives a sentencing court of its discretionary authority under 18 U.S.C. § 3584(a) to impose consecutive terms of imprisonment following revocation of concurrent supervised release terms.

         The panel held because the district court acted within its discretion in imposing consecutive sentences, no plain error occurred.

         Dubitante, Judge Berzon wrote to encourage the U.S. Sentencing Commission to resolve the anomaly in the Sentencing Guidelines, which are far from lucid in this scenario in which the district court turned the defendant's single violation of the conditions of his concurrent supervised release terms into multiple, consecutive terms of confinement, resulting in a prison sentence that is longer than the original term of imprisonment.

          OPINION

          RAWLINSON, CIRCUIT JUDGE.

         We must decide whether the district court committed plain error by imposing consecutive prison terms following revocation of multiple supervised release terms. Because we conclude that Chapter 7 of the United States Sentencing Guidelines (Guidelines) does not preclude the imposition of consecutive sentences under these circumstances, we affirm the judgment of the district court.

         I. BACKGROUND

         While working for American Express, defendant Roger William Campbell (Campbell) defrauded a supplier by identifying certain parts covered by the contract between the supplier and American Express as defective, and ordering replacement parts from the supplier. Rather than returning the "defective" parts to the supplier upon receipt of the replacement parts, Campbell sold the replacement parts to third parties. Following a guilty plea, Campbell was convicted of 35 counts of mail fraud. The district court sentenced Campbell to 35 concurrent 24-month prison terms followed by 35 concurrent three-year supervised release terms. The court also imposed a special assessment of $3, 400 with restitution in the amount of $857, 616. After Campbell began serving his supervised release term, Campbell's probation officer reported that Campbell failed to perform community service, pay restitution, submit financial reports, or remain in contact.

         In August, 2015, Campbell's probation officer filed a petition to revoke supervised release, and requested a warrant for Campbell's arrest, which the district court issued. After his arrest in 2017, Campbell admitted to a Grade C ...


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