UNITED STATES OF AMERICA, Plaintiff-Appellee, v. GERALD LYNN CAMPBELL, Defendant-Appellant.
No. 22-5567
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
August 10, 2023
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 23a0170p.06
Decided and Filed: August 10, 2023
Before: GIBBONS, READLER, and DAVIS, Circuit Judges.
COUNSEL
ON BRIEF: Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY‘S OFFICE, Knoxville, Tennessee, for Appellee.
OPINION
CHAD A. READLER, Circuit Judge. Gerald Lynn Campbell brandished a pistol and told a group of laborers that he had a bullet for each of them. Following an indictment, Campbell pleaded guilty to being a felon in possession of a firearm. The district court sentenced him to fifteen years’ imprisonment, concluding that Campbell‘s prior convictions for robbery and drug offenses triggered the Armed Career Criminal Act‘s mandatory minimum. Campbell appealed, challenging his sentence. We affirm.
I.
A group of construction workers were performing road repairs in Chattanooga, Tennessee. Gerald Lynn Campbell approached the group in his vehicle. When he arrived, he asked who had voted for Donald Trump in the recent presidential election. Seemingly unhappy with the responses he received, Campbell brandished a firearm. He told the laborers that he “had a bullet for each one of them.” Campbell then drove away, eventually parking his truck not far from the construction site. When responding officers found the vehicle, they also discovered Campbell sitting in his vehicle with a semi-automatic pistol in his lap.
A grand jury indicted Campbell for being a felon in possession of a firearm, in violation of
Campbell objected on multiple grounds. Among them, he argued that Tennessee robbery is not a predicate offense, that the drug offenses were not committed on different “occasions,” and that the Fifth and Sixth Amendments require that the different-occasion issue be decided by a jury. Campbell also challenged one of the Eastern District of Tennessee‘s standard supervised release conditions. The condition states that if Campbell‘s probation officer determined Campbell posed a “risk” to another, the probation officer could require Campbell to notify the person about the risk. E.D. Tenn. L.R. 83.10(c)(12). Campbell objected on the grounds that the provision was unconstitutionally vague.
The district court overruled Campbell‘s objections. It sentenced him to 180 months’ imprisonment, ACCA‘s mandatory minimum, relying on the conviction for Tennessee robbery and the three drug offenses as predicates. Campbell timely appealed.
II.
A. The Armed Career Criminal Act triggers an enhanced sentence for felonious possession of a firearm when a criminal defendant has three or more prior “violent felony” or “serious drug offense” convictions committed on different “occasions.”
Before the district court, the government‘s position was that Campbell‘s aggravated assault conviction was categorically a violent felony, satisfying the ACCA predicate offense requirements. The district court did not reach the issue, however, and the government does not ask us to do so now. That leaves the robbery and drug offenses as potential predicate crimes.
1. We begin with Tennessee robbery. Tennessee defines “robbery” as “the intentional or knowing theft of property from the person of another by violence or
Campbell responds with two intervening Supreme Court decisions he says require a new approach. According to Campbell, those cases—Elonis v. United States, 575 U.S. 723 (2015), and Borden v. United States, 141 S. Ct. 1817 (2021)—instruct that ACCA‘s definition of violent felony excludes offenses that are triggered when a defendant threatens physical force negligently. And, Campbell adds, Tennessee robbery sweeps in negligent threats of force, citing State v. Witherspoon, 648 S.W.2d 279 (Tenn. Crim. App. 1983), and Sloan v. State, 491 S.W.2d 858 (Tenn. Crim. App. 1972). But here again, our precedent forecloses Campbell‘s argument. See Belcher, 40 F.4th at 432 (referencing Witherspoon, 648 S.W.2d at 281, and Sloan, 491 S.W.2d at 861). Throughout the “long history” of Tennessee‘s robbery statute, “not once” has a Tennessee court construed the fear element to encompass instances where a defendant negligently caused the victim fear. Id. at 431-32; see also United States v. Hubbard, No. 21-6219, 2023 WL 319604, at *2 (6th Cir. Jan. 19, 2023).
Changing gears, Campbell argues that Tennessee robbery stretches beyond threats of physical force and includes threatening to falsely accuse the victim of sodomy. Campbell hangs his hat on a case that pre-dates the Civil War, Britt v. State, 26 Tenn. 45 (1846). This argument too is a familiar one. See Hubbard, 2023 WL 319604, at *3. In an earlier case, we described Britt as holding that “fear constituting an element of the crime is a fear of present personal peril from violence offered or impending.” Id. (citing Britt, 26 Tenn. at 46). Although Britt mused that robbery could include threatening to prosecute one for sodomy, no subsequent Tennessee case appears to have ever picked up the proposition. See id.
2. Campbell next turns our attention to his drug offenses. He challenges the district court‘s conclusion that those offenses were committed on three separate “occasions,” making them three ACCA predicate offenses. The occasions element springs from the statute‘s text. See
That is the case here. The offenses at issue are a Chattanooga drug trafficking offense in August 1992, a Norfolk drug trafficking offense in December 1992, and
Campbell characterizes the offenses as sharing a common “purpose” (trafficking drugs) because the Tennessee federal court considered the Virginia drug trafficking offenses as “relevant conduct” during Campbell‘s sentencing. But the Guidelines’ relevant conduct differs from Wooden‘s
Campbell also invokes the rule of lenity, summoning Justice Gorsuch‘s Wooden concurrence. In Justice Gorsuch‘s view, when “reasonable minds could differ” regarding whether offenses were committed on multiple occasions, the rule of lenity demands a judgment in the defendant‘s favor. Wooden, 142 S. Ct. at 1081 (Gorsuch, J., concurring). That view, however, seemingly is not a universal one. Cf. id. at 1075 (Kavanaugh, J., concurring) (“[T]he rule of lenity rarely if ever comes into play.“); Biden v. Nebraska, No. 22-506, slip op. at 2 (U.S. June 30, 2023) (Barrett, J., concurring) (noting that the rule of lenity is not a “strong-form” substantive canon). Either way, after considering offenses separated by months and two with many miles between them, no reasonable minds here could diverge on the occasion question. See Williams, 39 F.4th at 350 & n.4.
3. Lastly, Campbell argues that the Fifth and Sixth Amendments require that the government charge the separateness of the ACCA predicates in an indictment and prove the supporting facts to a jury. See Wooden, 142 S. Ct. at 1087 n.7 (Gorsuch, J., concurring) (noting that a “constitutional question simmers“). The United States, we note, likewise “agrees that a jury should find (or a defendant should admit) that ACCA predicates were committed on occasions different from one another.” Yet as the government also points out, Campbell‘s argument is precluded by precedent. At present, in our circuit, a sentencing judge may decide whether prior offenses were committed on different occasions. Williams, 39 F.4th at 351; Belcher, 40 F.4th at 432; see also United States v. Cook, No. 22-5056, 2022 WL 4684595, at *2 (6th Cir. Oct. 3, 2022) (explaining that on this point ”Wooden didn‘t disrupt our prior caselaw“). In any event, Campbell‘s argument does not have much purchase here. After all, he admitted that he committed the ACCA predicates on four different dates, each separated by months or years. See Belcher, 40 F.4th at 432 (rejecting defendant‘s similar argument in part because defendant admitted that at least three of his prior offenses were separated by at least six years).
B.1. That leaves Campbell‘s challenge to one of the Eastern District of
First, some history on the condition in question. District courts have discretion to impose supervised release conditions pursuant to
The risk notification condition now instructs that if a probation officer determines that a defendant poses “a risk” to “another person,” the probation officer may require the defendant to notify the person about the risk, and the defendant “shall” comply.
True, as Campbell notes, the due process clause forbids vague supervised release conditions. United States v. Shultz, 733 F.3d 616, 622 (6th Cir. 2013). At the same time, a condition need not “spell out every one of its applications.” Id. Instead, it must “fix an ascertainable standard of guilt.” Id. (cleaned up). That is the case here. The prior version of the condition was fatally flawed because the district court provided no clarification regarding what was meant by “risks,” “personal history,” or “characteristics.” Sexton, 719 F. App‘x at 484-85. But the latter two categories have been removed from the condition. See E.D. Tenn. L.R. 83.10(c)(12). And the district court clarified the scope of “risk” in the challenged condition; the “risk” referred to Campbell‘s “past criminal history“—a definition that clears the “ascertainable” bar. See Marcum, 2021 WL 1038272, at *4; see also Gibson, 998 F.3d at 423 (rejecting vagueness challenge because “risk” was cabined to those posed by the “defendant‘s criminal record” (emphasis omitted)).
Federal law affords probation officers extensive authority. See
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We affirm the district court‘s judgment.