United States v. Campbell, Connes B.

Apr 3, 2007
06-3418
Versions:221 F. App'x 459

with an unsworn, two-paragraph response insisting that the IRS had “not proved its case” because it had “not provided the court with any written proof of the installment agreements [it was] alleging.” Seagrave added that he was unable to discern any entries on the IRS transcripts of account in his possession reflecting “transactions of an installment agreement.” The district court held that Seagrave failed to comply with the local rule and thus concluded that the government‘s evidence that he twice proposed installment plans was undisputed. Those proposals, the court reasoned, had extended the collection deadline to September 8, 2004, making the levy in February timely.

On appeal Seagrave reprises his contention that the government failed to prove the existence of an installment agreement because the government did not produce evidence of a written agreement. But Seagrave misses the point. Although the Internal Revenue Code and IRS regulations do seem to suggest that any approved installment agreement between taxpayers and the IRS must be in writing, see 26 U.S.C. § 6159(a); 26 C.F.R. § 301.6159-1(b)(2), we can find no requirement that a taxpayer‘s initial request for an installment agreement also be in writing. See http://www.irs.gov/faqs/faq-kw93.html (last visited March 20, 2007) (informing taxpayers who owe money that they may use form or call toll-free number to request installment agreement). And since at summary judgment Seagrave never denied under oath (indeed, he has never denied at all) that he twice proposed installment plans that the IRS considered, the district court correctly credited the government‘s representation that it spent 254 days considering Seagrave‘s proposals. See S.D. Ind. Local R. 56.1(a); Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 922-23 (7th Cir.1994) (explaining that where non-moving party at summary judgment neglects to meet requirements of Rule 56.1, court will assume facts presented by moving party as true); see also McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (stating that in ordinary civil litigation even pro se litigants must follow procedural rules); Ammons v. Aramark Unif. Serv., Inc., 368 F.3d 809, 817 (7th Cir.2004) (holding that district court entitled to expect strict compliance with Rule 56. 1, not merely substantial compliance). Because this review period and the IRS‘s rejection of Seagrave‘s second request extended the collections deadline a total of 284 days, see 26 U.S.C. §§ 6331(k)(2)(A), (B), (B), 6503(a)(1), and rendered the tax levy timely, the district court properly granted the government‘s motion for summary judgment.

AFFIRMED.

Timothy M. O‘Shea, Office of The United States Attorney, Madison, WI, for Plaintiff-Appellee.

Jeff W. Nichols, Nichols Law Office, Madison, WI, for Defendant-Appellant.

Connes B. Campbell, Inez, KY, pro se.

Before Hon. FRANK H. EASTERBROOK, Chief Judge, Hon. JOEL M. FLAUM, Circuit Judge and Hon. TERENCE T. EVANS, Circuit Judge.

Order

Connes Campbell pleaded guilty to possessing cocaine base with intent to distribute. 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, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

Counsel first considers whether Campbell could contest his classification as a career 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, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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 not part of the offense but is only a sentencing consideration, about which the remedial portion of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (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 cocaine. 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, 482 F.3d 790 (5th Cir.2007) (collecting authority). Although two circuits have held that district judges are free to deviate from this statutory ratio 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 matter what Rita v. United States, cert. granted, — U.S. —, 127 S.Ct. 551, 166 L.Ed.2d 406 (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 Guidelines. 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 incorrect—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, 12 S.Ct. 495, 36 L.Ed. 294 (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 approve the same language in the same Congress.

Counsel‘s motion to withdraw is granted, and the appeal is dismissed as frivolous.

Notes

*
After examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.App. P. 34(a); Cir. R. 34(f).