*1 way to the Miner’s death. When there is opinions, entirely
conflict medical it is
appropriate for the ALJ to choose to fol- opinion physician
low the with the thorough analysis
more superior and the See, e.g., Sterling
credentials. Smokeless (4th Akers, 438,
Coal Co. v. 131 F.3d
Cir.1997); Helms, Peabody Coal Co. v. (7th Cir.1990).
F.2d majority Spagnolo faults Dr. for not
considering reports of the three other opined
physicians pneumoconiosis who
did contribute to the Miner’s death. Medi- diagnosis opinions
cal as to medical are, however,
causation based on the ob-
jective facts, observations, and test results
entered in the medical A physi- records. justified basing
cian is well a medical
opinion objective on the facts of the medi-
cal explanation records and not on an other,
the deficiencies of the opinions of qualified physicians.
less Dr. Spagnolo
thoroughly pertinent reviewed all the med- reason,
ical records. For that I find no Spagnolo’s
weakness in Dr. opinion based
on the fact that he does not attempt
explain away opinions of his quali- less colleagues.
fied
UNITED STATES of America Leroy CAMPBELL, Appellant.
Curtis
No. 00-1698. Appeals,
United States Court of
Third Circuit.
Argued Jan. 2001. July
Filed *2 supervised
onment and 5 release. appeals, contending light He Jersey, Apprendi New U.S. (2000), L.Ed.2d 435 his S.Ct. *3 was because the sentence unconstitutional drug issue of which resulted in a quantity, beyond statutory maximum verdict, jury’s authorized had not jury proven been submitted to the and beyond a doubt. conclude reasonable We sup- because the evidence at trial conviction, ported a under 21 U.S.C. 841(b)(l)(B)(iii), provides which for a 5 year to 40 sentence for distribution of at base, grams least 5 of cocaine sentence, although Appren- in violation of di, plain did not error. will constitute We affirm. therefore I.
In Szurlej, November Rick a local Special Agent officer who served as a for Drug United States Enforcement (“DEA”), Agency purchased a small amount of crack from cocaine Kenneth arrest, Stark, Freeland, Cottingham. Cottingham After his Shelly (argued), Lisa B. Defender, agreed cooperate by assisting in the Office of the Federal Public investigation drug of other activities in the Pittsburgh, Pennsylvania, for appellant. West End and McKees Rocks areas of (ar- Harry.Litman, Schlueter, R. Bonnie Pittsburgh, Pennsylvania. During a de- Office, gued), Attorneys’ United States briefing, Cottingham named as Pittsburgh, Pennsylvania, appellee. of drug one his sources. SLOVITER, BEFORE: FUENTES January part On as ALDISERT, Judges. and Circuit ongoing investigation DEA’s and under Szurlej’s supervision, Cottingham ar- FUENTES, Judge. Circuit ranged purchase a controlled from Camp- Leroy Campbell By Curtis was indicted for bell. telephone, Cottingham scheduled distributing in grams meeting excess of co- with to purchase two (“crack”) $2,000. caine base in violation of 21 Ap- ounces of crack cocaine for 841(a)(1) (b)(l)(A)(iii). §§ U.S.C. and At proximately day, a half hour later that and trial, surveillance, District jury Court instructed the under DEA Cottingham en- drug inside, as to the offense but did not submit tered vehicle. Once drug quantity jury $2,000, the issue of to the as an Cottingham handed proven beyond element to be Campbell supplied reasonable crack cocaine in return. verdict, off, a guilty Campbell dropped doubt. After the court After Cottingham cocaine, sentenced to 22 impris- the DEA seized the crack DEA extent I can comment on whether we to the what and delivered weighed here, have a as to whether we’re at York. doubt laboratory in New grams Campbell’s attorney or not.” trial, first called the Government At whether, sought guidance light about regarding the who testified Cottingham, stipulation, he remained free to contest Camp- from purchased cocaine he crack drug quantity, specifically whether the Szurlej, who The next witness bell. an equal evidence showed amount to or Cottingham outfitted with that he testified ensuing exceeding grams. During recorder, him picked up after the digital colloquy, the took the prosecutor position seized purchase, promptly controlled was not an element of drugs. subject the offense and therefore was not *4 Szurlej’s testimony, the During direct a jury prosecutor to determination. The Honor, stated, believe, Your “I prosecutor jury that did not “have to find stated the stipulation as to the chemical have grams. as an element that it’s over 50 the then conferred off analysis.” Counsel That’s not an issue them to decide.” and, resumed, questioning when record agreed, stating The court that is not “[i]t analysis Szurlej that the chemical testified argued an issue to at this time.” be co- drugs that the seized were determined testimony After conclusion of and the base, commonly known as crack co- caine closing arguments, the court instructed the weight, questioned about the caine. When that, jury Campbell, in order to convict it grams that it 53.2 Szurlej responded was find, doubt, beyond must a reasonable that Szurlej, level of 41%. After purity with a willfully” that knowingly he “acted and and chemist, Chris Anne the DEA forensic “possessed he with the intent to distribute Eleftheriou, performed that she testified distributed cocaine base.” The Dis- and/or analysis, chemical revealed the which drug quanti- trict the Court did submit had a weighed grams 53.2 and drugs the Instead, ty jury. issue to the the percent. She purity base of cocaine jury drugs the that the seized were told of remaining percent that the testified 'cocaine, “analyzed were and crack which cut- contained unidentified the substance pure weighed cent per found to be processing impurities, and ting agents, Thereafter, jury found grams.” 53.2 counsel by-products. Campbell’s other Campbell guilty. might whether the substance asked her Investigation Report moisture and The Presentence atmospheric have absorbed (“PSR”) Campbell had dealt stated that weight. Eleftheriou thereby gained cocaine, kilograms of unlikely. with over 1.5 thought possibility this of required an offense level 38. PSR agents, DEA Richard No- Three other history assigned Campbell a criminal also Braccio, lan, Snyder, and Dominick Daniel based, in infor- category part, upon of II their surveillance of also testified about by confidential informants provided mation and identi- purchase operation controlled Campbell’s some of who indicated that operation. at that Campbell present as fied he was on drug dealing occurred while Braccio, his cross-examination of Before Campbell’s Consequently, probation. trial counsel asked the court 262'to 327 sentencing range guideline stipulation that the about “the effect of months. He said that “a little sample was cocaine.” May in sentencing hearing During a up weight, came as to the bit of an issue questioned I am the District I’m not sure to what extent amount of con- concerning the gave I and to Government stipulation bound PSR], Campbell. trolled substance attributable to tion officer especially [in explained The Government Campbell of Mr. the ... admissions purchased amount in alleged the date drug enforcement task force member.” Further, grams. the indictment was 53.2 adopted The court also guideline PSR kilograms the Government stated that 1.5 crimi- findings regarding offense level and of cocaine could be attributed crack history nal category. Consequently, Campbell upon pre-arrest based his own Campbell court sentenced to DEA agents statements and a “conser- imprisonment, or 264 months. approach doing vative in the math.” The timely appeal filed a to this court then admitted statements jurisdiction Court. We have under 18 into the record. The em- Government also § U.S.C. 3742 and 28 U.S.C. phasized had been involved grams kilograms with about 500 1.5 II.
crack cocaine in relation two different individuals, and that confidential infor- that, light Ap- contends mants had confirmed that had prendi, his case should be remanded for quantities dealt of drugs. Finally, those resentencing. He asserts pointed the Government to a tape record- *5 drug quantity the he to Cottingham sold ing showing Campbell pre- that had been was not to jury proven submitted the and pared to in 1 kilogram deal of crack co- doubt, beyond a reasonable a in sentence caine. of the 20 years by excess authorized Campbell’s counsel that stated he had 841(b)(1)(C), U.S.C. which applies the objections to the PSR. The court declared specific absence of a drug quantity, is erro- a give 10-minute recess to him an opportu- neous. nity to confer with concerning objections. recess, those After the de- A. fense counsel “my stated that client [has] specifically advised me that he contests The initially argues Government paragraphs inclusive,” 10 through 19 which that Apprendi waived the issue every included “each para- and one of the stipulated because he had that the confis graphs setting allegations forth of relevant drugs cated grams were 53.2 of crack co conduct.” also the “contested] caine, therefore, longer he can no con allegation that alleged he made the confes- drug quantity test the Recognizing issue. However, agents.” sion to the counsel importance issue, the of this we asked provided no further detail concerning the counsel to portion direct us to that grounds objections. for Notably, the record where stipulation the as to cocaine object did not to paragraph 9 of quantity base is set forth. In response, its PSR, the implicated him in the sale the Government wrote that “[t]here was no grams of 53.2 of cocaine to Cotting- base stipulation written between parties,” the $2,000. ham for that, according but added to its trial coun sel, proceeded adopt to the there was an PSR off-the-record discussion findings, stating that “we agreeing stipulate find that the weight the clear weight of the type drug.1 credible evidence of Campbell’s appellate coun supports record finding the proba- responded the sel that rep- the Government’s Schlueter, Waldron, Pennsylvania, Letter from Bonnie R. Assistant to Marcia M. Clerk of Court, 12/14/00, Attorney U.S. for the Western District of at 1. Campbell main- imprisonment. that stated incorrect. She resentation 22-year that tains because her counsel advised trial Campbell’s statutory him imposed upon exceeds stipulate agreed he believe “he does not years but not maximum two based than 50 weighed more drugs his jury finding drug quantity, as to upon would stipulation such grams” vacated and sentence must be remanded interest.2 best not have been sentencing hearing. for a new circumstances, we cannot these Under Apprendi, Supreme Court held In stipulation was a there conclude “[ojther fact of a con prior than the Camp attributable viction, any penalty fact that increases the not did Certainly, the Government bell. beyond a crime Indeed, prescribed statuto stipulation on the record. place a jury, ry maximum must be submitted to a regarding the of witnesses questioning its proved beyond a reasonable doubt.” it suggests that be drugs weight of 490, 120 at S.Ct. 2348. The 530 U.S. to be at issue. drug quantity still lieved “ stated that it ‘is unconstitutional further Further, attorney expressly jury to remove from the legislature for a at witnesses challenged Government’s that increase the of facts assessment asked drug quantity and regarding trial range penalties to which prescribed ar District Court to from the permission exposed. equal is It is criminal defendant ex jury that reasonable doubt gue to the facts must be established however, ly clear that court, such this issue. The isted on ” Id. beyond a reasonable doubt.’ by proof preced controlling our relying on then — States, (quoting Jones United ent,3 doing him from so. On prevented 227, 252-53, 119 143 L.Ed.2d S.Ct. record, intentionally Campbell did this (1999) (Stevens, J., concurring)). Un *6 311 See a known right. or abandon relinquish statutory “prescribed the Olano, 733, regime, der this 725, v. United States (1993). that the de punishment maximum” the is 1770, 123 L.Ed.2d 113 S.Ct. 508 by under the facts found the
fendant faces 490, 482-83, jury. See id. at 120 S.Ct. B. Nordby, v. States 2348; 225 F.3d United Dis- because the Campbell argues Cir.2000). (9th 1053, 1059 drug quantity to did not submit trict Court Here, not the District did a jury proven beyond reasonable the to be jury the be drug quantity to doubt, had submit jury merely found that he the beyond a reasonable doubt. distributed, proven Under with the intent possessed or circumstances, only penalty au distribute, these He submits cocaine base. verdict is the by jury’s guilty by jury’s thorized authorized only penalty 841(b)(1)(C), § in 21 U.S.C. verdict, therefore, in one set forth the one set forth is (with not exception one relevant § that which 841 only penalty provision here) co involving conduct 21 criminalizes drug quantity, contains no reference drug 841(b)(1)(C). quan reference to caine base without § That autho- section U.S.C. stated, “[a] has tity. As the Tenth Circuit than sentence of no more rizes a maximum court, Freeland, an not Fed- tor to be determined 2. Letter from Lisa B. Assistant Waldron, Defender, subject jury to a find- to Marcia M. offense eral Public element 12/15/00, Court, Vazquez, at 2. F.3d ing. Clerk States See United Oct.9, 1188250, (3d 93, Cir. WL at *3 quantity drugs in a Apprendi, the 3. Before (en banc). 2001) sentencing merely fac- § 841 conviction court may impose district a sentence in The Government concedes that if its unsuccessful, argument excess of the maximum set forth in 21 waiver is then for 841(b)(1)(C) 52(b) purposes U.S.C. unless the bench- of Rule an error occurred mark quantity plain. of cocaine base for an en- For explained the reasons above, penalty alleged reject hanced is in the indictment we the Government’s waiver in being jury argument agree addition to submitted to the that Campbell has proven beyond plain reasonable doubt.” satisfied the first two error factors. Jones, 1231, United States v. 235 F.3d question The more difficult relates (10th Cir.2000); see also United to the third factor—the rights substantial 93, Vazquez, States v. 271 F.3d 2001 WL factor, inquiry. respect With to that (3d 2001) (en banc). 1188250, Oct.9, *3 Cir. rely on Vazquez, where we held that a provi- Under this “catch-all” or “default” defendant, Ap whose sentence violated sion, the maximum penalty for a defendant prendi drug quantity was not sub prior felony drug without a conviction is 20 jury determination, mitted for a cannot years. Vazquez, See 271 F.3d 2001 WL satisfy rights the substantial prong of the 1188250,at *3. Because received plain error if test the evidence conclusive excess of the maximum au- ly drug quantity establishes a adequate to penalty thorized upon based the District support the erroneous sentence. See finding quantity, Court’s of drug Vazquez, 271 F.3d 2001 WL was made demanding pre- under the less standard, at *8. Under this Campbell can ponderance standard, of the evidence not show that Apprendi violation in District Court violated the constitutional his case affected his rights. substantial rule set forth in Apprendi. The evidence at trial indisput established ably, certainly beyond a reasonable
C.
doubt, that Campbell
distributed
excess
parties
agree that,
Both
since of grams
instance,
of cocaine base. For
object
did not
Cottingham
the District
testified that Campbell sold
Court’s failure to
submit the
him crack cocaine in a
pur
controlled
issue to
jury,
we should evaluate this
Special Agent Szurlej
chase. DEA
con
constitutional
plain
violation under the
er
firmed that he had worked
Cotting
with
*7
52(b). See,
ror standard of Fed.R.Crim.P.
ham arrange
purchase,
this controlled
e.g., Nordby,
405 drug quantity, indictment of to from federal doubt as to establish sought torney statu- or ex- a fact that enhanced the defendants’ equaled cocaine the crack whether sentence, dispute seriously no not tory there was maximum did grams, 50 ceeded weighed fairness, at least integrity, public rep- cocaine or the crack affect the that judicial proceedings grams. utation of where “over- evidence more, than but less 5 or Distribution of whelming” “essentially uncontrovert- constitutes a base of cocaine grams at ed.” Id. 841(b)(l)(B)(iii), 21 U.S.C. of violation penal- maximum statutory carries
which case, it clear that the In this we think indisputable years. Because ty of above, in recited the context evidence we sold more Campbell that facts established factor, error constitutes plain of the third base, rely upon cocaine we grams of than “essentially uncontro- “overwhelming” and section, in that statutory maximum that distributed verted” evidence he actual- encompasses Ac- grams of 5 of cocaine base. excess received, to conclude ly cordingly, we hold while See rights were not affected. substantial did Apprendi, violated error sentence Further, would Campbell’s sentence id. rights or the not affect his substantial of kilograms the 1.5 change because fairness, integrity, public reputation or Court at- the District crack cocaine and, thus, judicial up- we will proceedings, sentencing him under tributed 22-year sentence. hold his provision conduct relevant guidelines’ id. The apply.4 See III. would continue Campbell would continue is that result argues also that the District sentencing range guideline face the same several errors at sen- Court committed that authorized the to 327 months of 262 considering his relevant con- tencing when (22 imposed. year) month sentence of these al- He asserts each duct. length leged greatly errors affected satisfy could if Even provide sentence and therefore prison his factor, Apprendi er plain error third vacating his sen- basis for independent an fairness, seriously affect the ror did not alleged errors dispose of these tence. We judicial public reputation or integrity, in turn. rely again point, On this proceedings. held that the defen where we Vazquez, A. error satisfy plain the fourth dant did not the District contends that factor, though his violated even 32(c)(1) by violated Fed.R.Crim.P. drug was not quantity
Apprendi objections to the his failing to resolve jury, the evidence to the where submitted 32(c)(1) requires findings. Rule *8 PSR’s that he had demonstrated overwhelmingly matter, disputed respect to each with drug quantity suffi involved with a been finding a on court “must make either sentence. his erroneous support cient to that no a determination allegation or support find further id. at *10. We See necessary the contro- finding is Supreme Court case recently decided into ac- will not be taken -, verted matter Cotton, States v. of United affect, sentencing.” in, (2002), or will not 1781, in count L.Ed.2d 868 152 S.Ct. pre- we have requirement, this Regarding held that the omission which the Court determination, III.C. see Part analysis conduct of the relevant 4. For a more detailed infra 32(c)(1) viously finding disput- stated on a Rule by stating “[a] under fact a upon ed or disclaimer of reliance findings supported by PSR’s were pre- fact disputed expressly must be made.” ponderance of the evidence. Electrodyne Systems United States (3d Cir.1998).
Corp., F.3d B. sentencing hearing, Campbell’s At the argues next that the Dis counsel informed the District Court that trict Court violated his due process rights his client contested findings the factual of by considering statements he made to responded, the PSR. The court “That is agents DEA without first establishing the going not enough. be Out of fairness to reliability of those Generally, statements. government, government has to the Federal ap Rules of Evidence do not specific challenges know the of the defen- ply sentencing proceedings, as even dant regard with to the factual assertions.” hearsay may be used the court when client, conferring After with his counsel considering relevant conduct. See United stated that specifically objected Paulino, States v. 996 F.2d 1547-48 to paragraphs 10-19 of the PSR. These (3d Cir.1993).5 However, the Sentencing paragraphs described relevant provide Guidelines that all information offense, conduct to the based on informa- used as a for sentencing basis must have tion from government obtained informants “sufficient indicia of reliability to support as well as from statements made probable its Sentencing U.S. accuracy.” to law enforcement officials. The court 6A1.3(a) (1998) Guidelines Manual acknowledged objections, these but held [hereinafter U.S.S.G.]. We have stated that that “the clear weight of the credible evi- this standard applied “should be rigorous dence of supports record the finding of the Miele, United States v. ly.” 989 F.2d officer, probation especially the admissions (3d Cir.1993). of Mr. ... Campbell to the [DEA].” hand, In the case at Campbell did has not shown a violation provide any detailed sup reasons to of Rule 32. That Rule provides that a port his claim that findings the PSR’s were party must communicate in writing to the unreliable, even after the court granted a probation “any objections officer any 10-minute recess to allow defense counsel material information ... contained in or to confer with Campbell regarding his ob omitted from the presentence report” jections result, to the PSR. As a there was days within 14 after receiving the PSR. no evidence 32(b)(6)(B). contradicting the PSR’s find Here, Fed.R.Crim.P. Camp ings that would have called into objections question bell first raised his to the PSR the reliability of Campbell’s prior at the sentencing hearing, state but did not ex Thus, plain why ments. this distinguishable he chose to wait until case is the hear Miele, ing course, to do so. from Of where we may held that there were objections allow no sufficient any reliability new be raised at indicia of for the time imposing before if district court good to have based finding its See cause is shown. testimony Fed.R.Crim.P. of an infor 32(b)(6)(D). However, mant, even assuming addict, who drug known but Campbell properly objections, only raised his it after was clear given that he had *9 the District Court obligations fulfilled its inconsistent statements on the amounts of 5. exception; We note one the sentencing rules with re- proceedings. Fed.R.Evid. are, fact, spect privileges 1101(d)(3). to applicable in to determination, consider, may court the See 989 conspiracy. in a involved drugs in example, ... similar transactions con- F.2d at 662-65. substances the defendant.” trolled object- he once contends that Campbell Thus, 2D1.1, n. 12. cmt. we U.S.S.G. District findings, the the PSR’s ed to “in recognized calculating that the have the whether have considered should Court particular involved in a drugs amount DEA to the were he made statements of estimation is some- operation, degree words, In other reliable. voluntary and Paulino, F.2d at necessary.” times objection general that his Campbell argues Nevertheless, the court “must care- to make a court required the to PSR the fully government’s proof the scrutinize volun- on the statements’ determination supported by that are ensure its estimates making any reliability before tariness and Id. preponderance of the evidence.” on the sentencing based regarding findings sentencing, the court responds Campbell’s At The Government statements. lawyer at on its made the Government’s objection Campbell questioned that he had never The described hearing was calculation. Government sentencing that Thus, based on the the Govern- that its calculation was state- the statements. made Campbell Specifically, was not had made. the District Court ments argues, ment initiative, consider, that regularly own had stated he ob- on its required Motley, the statements crack from Chris “C of whether tained question a/k/a ounce, ounce, Mott,” in half voluntary. quarter were approximately amounts one ounce from that any evidence absence of In January largest 1992 to 1995. The amount voluntari- doubt on the statements’ casts Motley four Campbell received from that the court reliability, agree we or ness Using “a conserva- one half ounces. inquiry into need to make a further did not math,” in approach doing tive Gov- § 6A1.8. factors to fulfill U.S.S.G. those that transac- stated ernment reply cites in his that cases The Motley approximately tions with involved brief, hearing on volun- required a In kilograms of crack cocaine. addi- 1.5 tariness, they did apt are not here because tion, that he dealt Campbell had stated at the of information concern the use one, in “Biddy,” Boxley, Darrel with a/k/a Therefore, conclude sentencing phase. every two, crack cocaine or three ounces of violate did not the District Court that year. Again of a days period for a rights when con- process due calculation, the Gov- conservative using a at sentenc- sidering Campbell’s statements have to- that would stated this ernment ing. Thus, kilogram. around half a taled that dealt proffered Government C. of crack co- kilograms 1.5 at least with that the Finally, Campbell submits caine. determining clearly erred District the District Court cannot hold that cocaine could We kilograms 1.5 of crack the Government’s clearly adopting erred considered as to him and be attributed attribut- drugs findings on the amount relevant Sentenc part of his conduct. First, “[wjhere noted earli- as we Campbell. there able provide ing Guidelines any er, evidence present did not or the amount seized drug seizure is no his earlier offense, have would contradicted not reflect the scale does officials. law enforcement quantity statements approximate shall Moreover, informants from statements making In this controlled substance. *10 burn, surviving corroborated that dealt these children of Robert K. Finally, amounts. the Government Rayburn, deceased; also Robert L. stated that it had a tape recording of Anderson, as Executor for the Estate Campbell proposing the of a kilogram sale Rayburn, deceased; of Robert K. Thus, of crack cocaine. conclude that v. the District finding Court did not err -in America; The United States of Bell Hel that 1.5 kilograms of crack cocaine could icopter-Textron, Inc., foreign corpo be to Campbell. attributed ration; Inc., foreign corpo Textron IV. ration; Allison Gas Turbine Division Accordingly, explained for the reasons Corporation, of General Motors a for above, we will affirm the District Court’s eign corporation; Macrotech Fluid sentence. Inc., Sealing, Microdot, C.D.I. Division Inc., Microdot, Inc., Ma Microdot/CDI SLOVITER, Judge, concurring. Circuit Macrotech, Inc.; Al crotech/CDI d/b/a This court held in United States v. Engine Company, lison Inc. (2001), Vazquez, 271 closely F.3d 93 di Mayan, individually, Kathleen K. decision, vided as sur en banc the defen viving spouse Mayan, dant’s sentence of Gerald following his conviction W. deceased, drug conspiracy and plain was not error as Administratrix de of the spite the Mayan, failure to submit Estate of deceased, issue of Gerald W. jury. to the I wrote for Mayan, on behalf of James Paul dissent that the error Mayan affected defendant’s Gerald Vincent II and Jake substantial rights, relying on the decision Mayan, surviving Daniel sons of Ger in Apprendi Jersey. v. New Supreme Mayan, deceased, ald W. Court has now unanimously rejected that v. Cotton,
view United States v.
America;
The United States of
Bell Hel
-,
122 S.Ct.
eral Corporation; Motors Macrotech Sealing, Fluid Macrotech, Inc. dba Inc.; Macrotech/CDI; Inc.; Microdot Microdot/CDI, C.D.I. Division and/or Microdot, Inc.; Engine Allison Com STECYK, Michelle individually, S. as pany, Inc. Anthony Executrix of the Estate of J. 99-2030, 99-2051, 94-CV-1818, Nos. Stecyk, Jr., Anthony behalf of 94-CV-4342, 94-CV-4343. Stecyk, minor, L. United States Court of Appeals, BELL TEXTRON, INC.; HELICOPTER Third Circuit. does, through 5, inclusive; United Argued March 2001.
States of America. July Filed Dorothy Rayburn, L. individually, as surviving spouse Ray- K. Robert
burn, deceased, and on behalf of Alan Rayburn
M. Jacqueline Ray- M.