United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 25, 2011

Decided June 1, 2011

Before

RICHARD A. POSNER, Circuit Judge

JOHN L. COFFEY, Circuit Judge

JOEL M. FLAUM, Circuit Judge   

No. 10‐3790

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

LERVON L. CAMPBELL,

Defendant‐Appellant.                      

Appeal from the United States District

Court for the Eastern District of Wisconsin.

No. 09‐CR‐78

Lynn Adelman,

Judge.

O R D E R

Lervon Campbell pleaded guilty to being a felon in possession of a firearm, 18 U.S.C.

§ 922(g)(1), and received the 15‐year mandatory minimum sentence to run concurrent to an

unrelated state sentence he was then serving. We vacated the sentence on appeal and

remanded the case so that the district court could exercise its discretion to adjust Campbell’s

sentence to account for the time he had served on his undischarged state term. United States

v. Campbell, 617 F.3d 958, 961‐62 (7th Cir. 2010). On remand the district court granted

Campbell’s request to make the sentences fully concurrent and adjusted his sentence

downward to account for the 24 months that Campbell already had served in state prison.

Campbell now appeals his new sentence, but his appointed counsel has concluded that the

appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 744

(1967). We invited Campbell to comment on counsel’s submission, see CIR. R. 51(b), but he

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1
No. 10‐3790 Page 2

did not respond. Our review is limited to the potential issue identified in counsel’s facially

adequate brief. See United States v. Cano‐Rodriguez, 552 F.3d 637, 638 (7th Cir. 2009).

The only issue that counsel considers raising is whether Campbell could challenge

the district court’s determination, at his initial sentencing, that he qualified as a career

offender under the Armed Career Criminal Act, 18 U.S.C. § 924(e). Counsel considers

whether Campbell could argue that the ACCA does not apply to him because his three

qualifying burglary convictions did not involve illegal entries of a “dwelling,” as required

under § 4B1.2(a)(2) of the Sentencing Guidelines. But as counsel points out, this argument is

not only frivolous, but also waived because, in his plea agreement, Campbell stipulated that

he qualified as an ACC for having three qualifying burglary convictions. See United States v.

Harris, 230 F.3d 1054, 1058‐59 (7th Cir. 2000). Moreover, the law‐of‐the‐case doctrine would

preclude Campbell from challenging the career‐offender penalty for the first time in this

successive appeal. See United States v. Sumner, 325 F.3d 884, 891 (7th Cir. 2003).

Even if Campbell could raise the issue, it would be fruitless to argue that Campbell

did not qualify as an armed career criminal. “[A] person has been convicted of burglary for

purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact

definition or label, having the basic elements of unlawful or unprivileged entry into, or

remaining in, a building or structure, with intent to commit a crime.” Taylor v. United States,

495 U.S. 575, 599 (1990); see United States v. Woods, 233 F.3d 482, 485 (7th Cir. 2000). Thus

burglary includes breaking into structures not limited to residential dwellings, Taylor, 495

U.S. at 576; United States v. Gallman, 907 F.2d 639, 644 (7th Cir. 1990), and his convictions

count four purposes of § 924(e). The Supreme Court specifically rejected Campbell’s belief

that a burglary only qualifies if it involves a residential dwelling. Taylor, 495 U.S. at 576.

Accordingly, we GRANT the motion to withdraw and DISMISS Campbell’s appeal.