and Submitted September 12, 2018 San Francisco, California
from the United States District Court for the District of
Arizona Susan R. Bolton, District Judge, Presiding No.
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
Before: Marsha S. Berzon, Johnnie B. Rawlinson, and Paul J.
Watford, Circuit Judges.
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
panel held because the district court acted within its
discretion in imposing consecutive sentences, no plain error
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.
RAWLINSON, CIRCUIT JUDGE.
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.
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.
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 ...