*

The Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of California, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0115P (6th Cir.)

File Name: 04a0115p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

ROBERT CAMPBELL,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

 Respondent-Appellee.

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No. 03-1178

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 01-73211—Arthur J. Tarnow, District Judge.

Argued: March 18, 2004

Decided and Filed: April 20, 2004 

Before: COLE and GILMAN, Circuit Judges;

SCHWARZER, Senior District Judge.*

_________________

COUNSEL

ARGUED: Dennis J. Clark, PLUNKETT & COONEY,

Detroit, Michigan, for Appellant. Michael R. Mueller,

2 Campbell v. United States No. 03-1178

UNITED STATES ATTORNEY, Detroit, Michigan, for

Appellee. ON BRIEF: Dennis J. Clark, PLUNKETT &

COONEY, Detroit, Michigan, for Appellant. Michael R.

Mueller, UNITED STATES ATTORNEY,Detroit,Michigan,

for Appellee.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Robert Campbell

appeals from the district court’s denial of his post-conviction

motion to vacate his sentence. For the reasons set forth

below, we AFFIRM the judgment of the district court.

I. BACKGROUND

After two mistrials as a result of hung juries, a third grand

jury indicted Campbell on the following three counts:

(1) conspiracy to possess controlled substances with the intent

to distribute and conspiracy to actually distribute the

controlled substances, all in violation of

21 U.S.C. §§ 841(a)(1) and 846; (2) aiding and abetting the

possession of cocaine with the intent to distribute, in violation

of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (3) aiding

and abetting the possession of heroin with the intent to

distribute, in violation of 21 U.S.C. § 841(a)(1) and

18 U.S.C. § 2. In July of 1998, a jury found Campbell guilty

on all counts. The district court sentenced Campbell to 324

months of imprisonment and 5 years of supervised release.

Campbell appealed, alleging numerous errors. In October

of 2000, this court issued an amended opinion that affirmed

his conviction and sentence by a 2 to 1 vote, with the dissent

favoring a new trial because of the alleged prosecutorial

misconduct that occurred during closing argument.
No. 03-1178 Campbell v. United States 3

Campbell petitioned to vacate his sentence pursuant to

28 U.S.C. § 2255 in August of 2001. The case was referred

to a magistrate judge, who issued a 30-page Report and

Recommendation (R&R) concluding that the motion should

be denied. Over Campbell’s objections, the district court

adopted the R&R. Campbell then applied for a certificate of

appealability as to nine issues, all of which the district court

certified. In January of 2003, Campbell filed a timely notice

of appeal.

II. ANALYSIS

A. Ineffective-assistance-of-counsel claims

Campbell asserts numerous ineffective-assistance-ofcounsel claims on appeal. To prevail on these claims, he

must establish that (1) his “counsel’s performance fell below

an objective standard of reasonableness, and (2) there is a

reasonable probability that, but for the deficiency, the

outcome of the proceedings would have been different.”

Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003).

“The objective standard of reasonableness is a highly

deferential one and includes a strong presumption that

counsel's conduct falls within the wide range of reasonable

professional assistance.” Mason v. Mitchell, 320 F.3d 604,

616-17 (6th Cir. 2003) (quotation marks omitted). A

“reasonable probability” has been defined by the Supreme

Court as “a probability sufficient to undermine confidence in

the outcome.” Strickland v. Washington, 466 U.S. 668, 694

(1984).

 When deciding ineffective-assistance claims, courts need

not address both components of the inquiry “if the defendant

makes an insufficient showing on one.” Id. at 697. “If it is

easier to dispose of an ineffectiveness claim on the ground of

lack of sufficient prejudice, which we expect will often be so,

that course should be followed.” Id. These claims, as part of

Campbell’s motion to vacate his sentence under 28 U.S.C.

§ 2255, are reviewed de novo. Griffin, 330 F.3d at 736.

4 Campbell v. United States No. 03-1178

1. Ineffectiveness based upon alleged Speedy Trial Act

violation

Campbell first argues that the district court erred in denying

his claim that his counsel rendered ineffective assistance by

not moving for a dismissal of the indictment based upon

alleged violations of the Speedy Trial Act. 18 U.S.C.

§§ 3161-74. The Act requires that a criminal defendant be

brought to trial within 70 days after the filing of an indictment

or an arraignment, whichever is later. 18 U.S.C. § 3161(c)(1).

A retrial that follows a mistrial must start “within 70 days

from the date the action occasioning the retrial becomes final

. . . .” 18 U.S.C. § 3161(e). If a defendant is not brought to

trial within 70 days, taking into account excludable time

periods under the Act, the district court is obligated to dismiss

the indictment on the defendant’s motion. 18 U.S.C.

§ 3162(a)(2); United States v. Jenkins, 92 F.3d 430, 438 (6th

Cir. 1996). The dismissal may be either with or without

prejudice. Id.

Campbell alleges the following three violations of the

Speedy Trial Act: (1) 83 days elapsed between the end of his

first trial and the start of his second, (2) approximately 157

days elapsed between the second mistrial and the dismissal of

the second indictment, and (3) 78 days elapsed between the

dismissal of the second indictment and Campbell’s

arraignment on the third superseding indictment. The

magistrate judge’s R&R concludes that even if violations of

the Speedy Trial Act did occur, Campbell cannot demonstrate

that he was prejudiced as required by Strickland. For the

reasons that follow, we agree.

In his brief, Campbell asserts that the alleged violations of

the Speedy Trial Act prejudiced him, but he provides little

explanation and no authority to support his contentions.

Campbell says that the prejudice “is obvious” and that “there

clearly was prejudice suffered by Campbell.” But he does not

allege any specific prejudice, such as a witness becoming

unavailable.
No. 03-1178 Campbell v. United States 5

Under the Speedy Trial Act, courts must consider the

following three factors when determining whether to dismiss

an indictment with or without prejudice: “[1] the seriousness

of the offense; [2] the facts and circumstances of the case

which led to the dismissal; and [3] the impact of a

reprosecution on the administration of [the Act] and on the

administration of justice.” 18 U.S.C. § 3162(a)(1). As

explained in the R&R, “[e]ach of these factors would have

counseled a dismissal without prejudice” in Campbell’s case:

Defendant was charged with involvement [in] an

extensive, serious drug distribution conspiracy, for which

he was sentenced to nearly 30 years’ imprisonment. As

to the second factor, the delays in defendant’s case were

not extensive and were occasioned in part by the

complexity of the procedural issues involved, including

two previous hung juries and a reindictment because of

an improperly constituted grand jury. Further, there is no

evidence of bad faith or any attempt to take advantage of

the delay on the part of the prosecution. Finally, as to the

third factor, defendant does not allege that he suffered

any actual prejudice as a result of the delay, and there is

no allegation that the government engaged in any

improper behavior which must be deterred in order to

insure compliance with the Act. In these circumstances,

any dismissal under the Act would have been without

prejudice.

We have no basis to fault the magistrate judge’s analysis.

Because Campbell cannot show that he was prejudiced by his

trial counsel’s failure to request dismissal for the alleged

violations of the Speedy Trial Act, we affirm the district

court’s denial of relief to Campbell on this claim.

2. Ineffectiveness based upon failure to request a

downward departure

Campbell next argues that his trial counsel rendered

ineffective assistance by failing to request a downward

6 Campbell v. United States No. 03-1178

departure at sentencing based upon Campbell’s crime-free

post-offense conduct and based upon the disproportionality

between his sentence and those of his codefendants. Neither

post-offense behavior nor disproportionality, however, is

mentioned in the Sentencing Guidelines as a basis for

departure. U.S. Sentencing Guidelines §§ 5K2.1-.21; see

Koon v. United States, 518 U.S. 81, 96 (1996) (noting that a

sentencing court “must bear in mind the [Sentencing]

Commission’s expectation that departures based on grounds

not mentioned in the Guidelines will be highly infrequent”).

Under the Sentencing Guidelines, the sentencing court may

impose a sentence below the guideline range where a

mitigating circumstance exists “of a kind, or to a degree, not

adequately taken into consideration by the Sentencing

Commission in formulating the guidelines that should result

in a sentence different from that described.” U.S. Sentencing

Guidelines Manual § 5K2.0 (quotation marks omitted). The

R&R and the government both note that neither post-offense

behavior nor disproportionality is mentioned in the

Sentencing Guidelines as a basis for departure. See U.S.

Sentencing Guidelines Manual § 5H1.1-.12 (listing “certain

offender characteristics” relevant “to the determination of

whether a sentence should be outside the applicable guideline

range”).

Campbell argues, however, that his lack of involvement in

drug activity or other criminal conduct since his arrest rises to

the level of “extraordinary post-offense behavior.” But as this

court noted in United States v. Biehl,

[s]ome degree of presentence rehabilitation is to be

expected from a penitent defendant, whether due to a true

acceptance of responsibility or from one who simply

wants to “put his best foot forward” at sentencing with

hopes of receiving leniency from the sentencing court.

Furthermore, in order to keep the temporary liberty

defendant was given by delaying his sentence for almost

three years, abiding by the fairly typical terms of his
No. 03-1178 Campbell v. United States 7

presentence release is not unexpected. As the First

Circuit stated, “such predictable reactions, while

laudable, fall shy of what we believe is necessary to take

cases out of the heartland.”

Nos. 98-3318, 98-3346, 1999 WL 98600, at *3 (6th Cir.

Jan. 25, 1999) (unpublished opinion) (quoting United States

v. Sklar, 920 F.2d 107, 117 (1st Cir. 1990)). Because

Campbell failed to show that he was prejudiced by his

counsel’s failure to move for a downward departure based

upon either disproportionality or post-offense behavior, we

affirm the district court’s denial of relief to Campbell on this

ground.

3. Ineffective assistance based upon trial proceedings

Campbell also argues that the following errors occurred

during the trial that deprived him of his Sixth Amendment

right to the effective assistance of counsel: 

a. Failure to object to government witness’sreference

to organized crime

Campbell contends that his trial counsel was ineffective for

failing to object and move for a mistrial after government

witness Richard Carroll, a New York City police officer,

testified that he was assigned to the Organized Crime Control

Bureau at the time of his testimony. This testimony,

according to Campbell, “implicitly linked Campbell to this

criminal group which has [] strongly negative connotations in

the minds of most citizen jurors.” The R&R’s thorough

analysis of this issue explains why Campbell is not entitled to

relief on this basis:

Although defendant contends that this remark was

“irrelevant, inflammatory and prejudicial,” he does not

state how he was prejudiced by this single reference to

organized crime. Notably, the comment was in no way

connected to his case, but was simply part of background

8 Campbell v. United States No. 03-1178

testimony concerning the witness’s current employment.

Nowhere in his testimony did Carroll relate any of the

allegations against defendant to organized crime, and he

also testified that he was assigned to the Street Unit, not

the Organized Crime Control Bureau, at the time he

arrested [Campbell’s] coconspiratorCarol Bayless. Thus,

there is not a reasonable probability that the comment

influenced the jury’s verdict in any manner. See, e.g.,

United States v. Catalano, No. 91-50372, 1992 WL

212322, at *2 (9th Cir. Sept. 3, 1992) (per curiam)

(defendant not denied a fair trial by prosecutor’s

comments concerning organized crime where references

were isolated and not inflammatory); United States v.

Thirion, 813 F.2d 146, 156 (8th Cir. 1987) (defendant

not denied a fair trial by question relating to whether

defendant, an attorney, had represented an organized

crime figure; the matter came up only once during the

course of a lengthy trial and defendant’s answer linked

the client, and not the defendant, to organized

crime) . . . .

Because Campbell fails to show that this comment prejudiced

him, we affirm the district court’s denial of relief to Campbell

on this issue.

b. Prejudicial remarks to the jury

Campbell argues that his trial counsel rendered ineffective

assistance by making prejudicial remarks to the jury during

his opening and closing statements. In his opening statement,

for example, Campbell’s counsel stated:

Perform the duties that your oath says that you will do.

And whatever your verdict is, it is. If your verdict

ultimately is guilty, so be it; it’s guilty. That’s what our

system is about . . . .

Campbell contends that his counsel’s comments evidenced a

“lack of concern for the verdict” and that his counsel should
No. 03-1178 Campbell v. United States 9

have instead argued “that a reasonable doubt, or doubts,

should arise from the evidence . . . .”

As noted in the R&R, these comments “do not amount to

constitutionally ineffective assistance”:

On the contrary, counsel repeatedly emphasized the

burden of proof, requiring the prosecutor to prove the

charges against petitioner beyond a reasonable doubt. He

also repeatedly stated that, in his view and for the reasons

he explained at length to the jury, the prosecutor had not

met this burden. While counsel’s discussion of the

burden of proof was perhaps not as eloquent as it could

have been, counsel at all times acted as an advocate for

defendant and pressed defendant’s case. In these

circumstances, the comments of counsel do not amount

to constitutionally ineffective assistance.

We agree, and accordingly affirm the district court’s denial of

relief to Campbell on this ground.

c. Failure to propose defense-theory instruction

Campbell argues that his counsel’s failure to request a jury

instruction explaining his theory of the case amounted to the

ineffective assistance of counsel. In his argument, however,

Campbell does not demonstrate how he was prejudiced by

this omission. The R&R explains that Campbell 

cannot show that he was prejudiced by counsel’s failure

because his theory was adequately conveyed to the jury

by the Court’s instructions on the elements of the

government’s charges and the burden of proof.

Defendant’s theory of the case was a simple denial of

involvement in the conspiracy.

The R&R’s reasoning is persuasive and we therefore affirm

the district court’s denial of relief to Campbell on this claim.

10 Campbell v. United States No. 03-1178

d. Failure to call character witnesses

Campbell contends that his case presented the jury with a

classic credibility question because the government asserted

that he was involved in drug activity and Campbell denied

those allegations. He argues that character witnesses

“testifying to [his] reputation for truthfulness and veracity

would have been significant.” According to Campbell,

character witnesses were available to testify on his behalf, but

his trial counsel failed to call them. Campbell concludes that

this failure amounts to the ineffective assistance of counsel.

Both the R&R and the government note, however, that

Campbell failed to provide any information regarding “what

witnesses should have been examined more fully or what

additional witnesses should have been called.” Consequently,

Campbell cannot rebut the strong presumption that his

attorney’s actions were the product of sound trial strategy.

Strickland v. Washington, 466 U.S. 668, 690 (1984) (“[T]he

court should recognize that counsel is strongly presumed to

have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional

judgment.”). We accordingly affirm the district court’s denial

of relief to Campbell on this basis. 

e. Eliciting of prejudicial testimony

Campbell argues that his trial counsel rendered ineffective

assistance by eliciting prejudicial testimony from three

government witnesses on cross-examination. During the

cross-examination of a Drug Enforcement Agency (DEA)

agent, Campbell’s trial counsel asked whether the agent felt

that Campbell “may have been somehow with or involved

with” the other members of the alleged conspiracy. Campbell

contends that such testimony indicating a connection between

Campbell and “admitted drug traffickers . . . could only have

inured to Campbell’s detriment.” With regard to this

testimony, the R&R notes that the questions preceding and

following the challenged question show that Campbell’s trial
No. 03-1178 Campbell v. United States 11

counsel was attempting to cast doubt upon the DEA agent’s

belief:

Counsel was trying to show that the agent’s belief was

not credible given that he did not have the [car that

Campbell was traveling in] followed by another agent

when it left the motel parking lot [where the other

coconspirators were]. Counsel asked a number of

questions establishing this fact, as well as the fact that the

agent did not see defendant carrying anything either to or

from the room in which the other conspirators were

apparently conducting the transaction.

Campbell next argues that his counsel’s cross-examination

of a police officer was improper because an inquiry as to

where the police officer had previously seen a picture of

Campbell led the officer to respond that he had “seen a

picture on a prior narcotic raid.” This answer is most likely

not what counsel expected, but, as the R&R notes, the

question was part of a legitimate strategy on the part of

Campbell’s attorney to question the officer about his

observations and identification of Campbell.

Finally, Campbell argues that his defense counsel’s

question to a DEA agent about whether he was “relying on

the word of government witnesses Carol Bayless, Orlando

Bayless, Larry Anderson, and Christopher Owens” was

improper given that the DEA agent answered: “Not solely the

fact of the people that you were discussing.” Campbell

contends that this answer implied that there were other

witnesses and other evidence that had not been presented at

trial and that such evidence would have been deemed

improper had it been elicited by the prosecution. Again, we

agree with the R&R’s analysis, which is as follows:

This isolated statement came after counsel elicited

repeatedly from the agent that he was, in fact, relying

primarily on the word of the government witnesses, and

that he had no independent evidence, through

12 Campbell v. United States No. 03-1178

surveillance, to indicate that the defendant was involved

in the crime. In light of counsel’s successful crossexamination, it is difficult to see how this isolated

statement would have, in defendant’s view, [led] the jury

to conclude that there were other witnesses who did not

testify.

The R&R reasoned overall that

[w]hile counsel’s questions to the witnesses may

illustrate a classic example of the first rule of crossexamination; don’t ask a question unless you know what

the answer will be, the only issue for the Court is

whether counsel’s conduct in asking the question fell

below an objective standard of reasonableness.

We agree with the R&R’s conclusion that Campbell has

failed to show that his counsel’s performance was deficient

and therefore affirm the district court’s denial of relief to

Campbell on this issue.

f. Failure to impeach witness Orlando Bayless

Campbell contends that his trial counsel’s failure to

impeach Orlando Bayless—a government witness and one of

Campbell’s coconspirators—constituted the ineffective

assistance of counsel. He argues that his trial counsel should

have impeached Bayless regarding inconsistencies between

Bayless’s testimony at Campbell’s second and third trials

concerning the amount of money Campbell used to purchase

the drugs. Campbell also contends that his trial counsel

should have impeached Bayless with the statement that

Bayless initially gave to the police, in which he denied any

knowledge of the money seized by the police.

We agree with the R&R’s analysis and conclusion on this

issue, which is as follows:
No. 03-1178 Campbell v. United States 13

It is true that counsel could have chosen to attack Bayless

through the inconsistencies in his testimony. However,

the inconsistencies identified by defendant were

relatively minor, addressing whether defendant had

brought $70,000 or $80,000 to the motel. Counsel

instead chose to focus his attack on Bayless on the

substantial sentence reduction Bayless was hoping to

receive in exchange for his testimony, and on Bayless’s

significant drug related activity. This was a reasonable

trial strategy. Further, defendant is unable to establish

that he was prejudiced by counsel’s failure to question

Bayless about these minor inconsistencies.

Accordingly, we affirm the district court’s denial of relief to

Campbell on this issue.

g. Failure to object to alleged prosecutorial

misconduct

Campbell argues that his trial counsel’s failure to object to

several instances of alleged prosecutorial misconduct during

the government’s closing argument and to move for a mistrial

based upon that alleged misconduct constituted the ineffective

assistance of counsel. Specifically, Campbell contends that

the prosecutor improperly (1) vouched for the credibility of

the government’s witnesses, (2) expressed his personal

opinion as to Campbell’s guilt, and (3) made inflammatory

emotional appeals to the jury.

Campbell raised these identical claims as substantive issues

in his direct appeal. A prior panel of this court held that the

prosecutor’s remarks were isolated and that “[e]ven if the

closing argument improperly appealed to the emotions of the

jury, the error, if any, was not plain because there was ample

evidence in the record to convict Robert.” United States v.

Campbell, Nos. 98-1782, 98-2174, 2000 WL 1597858, at *4

(6th Cir. Oct. 19, 2000) (unpublished opinion). In Campbell’s

§ 2255 proceedings, the magistrate judge analyzed the claim

of ineffective assistance of counsel based upon the alleged

14 Campbell v. United States No. 03-1178

prosecutorial misconduct and noted that this court had

rejected the substantive claims on direct appeal. Given this

court’s resolution of these claims, the R&R concluded that

Campbell could not show that his counsel was deficient or

that he was prejudiced by his counsel’s failure to object or

move for a mistrial.

The district court disagreed with the magistrate’s R&R on

this point, rejecting “that portion of the R&R that states the

prosecutor’s statements did not rise to prosecutorial

misconduct.” “[I]n the absence of a pronouncement from the

Sixth Circuit on this case,” the district court said that it

“would have found prosecutorial misconduct.”

We need not resolve this difference of opinion between the

magistrate judge and the district judge, especially because we

do not read this court’s prior decision as absolving the

prosecutor of any misconduct. The earlier decision on this

issue is instead based upon the isolated nature of the remarks

and the lack of prejudice to Campbell. To succeed on his

ineffective assistance of counsel claim, Campbell must

demonstrate “that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v.

Washington, 466 U.S. 668, 694 (1984). This he has been

unable to do. In the case before us, no less than four members

of the alleged drug conspiracy testified against Campbell at

trial. Given the overwhelming evidence establishing

Campbell’s guilt, we believe that he would not have been able

to show that, but for his attorney’s failure to object to the

prosecutor’s alleged misconduct, the result would have been

different. We accordingly affirm the district court’s denial of

relief to Campbell on this issue.

h. Ineffective assistance based upon the cumulative

effect of all alleged errors 

Campbell’s final ineffective-assistance-of-counsel claim is

that the “numerous errors concerning matters of great
No. 03-1178 Campbell v. United States 15

importance . . . had to have [had] a substantial effect on the

jury.” We acknowledge that trial-level errors that would be

considered harmless when viewed in isolation of each other

might, when considered cumulatively, require reversal of a

conviction. United States v. Parker, 997 F.2d 219, 221 (6th

Cir. 1993). But we also agree with the R&R that “the

accumulation of non-errors cannot collectively amount to a

violation of due process.” See McKinnon v. Ohio, No. 94-

4256, 1995 WL 570918, at *12 (6th Cir. Sept. 27, 1995)

(unpublished opinion) (quoting United States v. Rivera, 900

F.2d 1462, 1471 (10th Cir.1990) (“[C]umulative-error

analysis should evaluate only the effect of matter determined

to be in error, not the cumulative effect of non-errors.”);

United States v. Lumpkin, 192 F.3d 280, 290 (2d Cir. 1999)

(“[T]he accumulation of non-errors does not warrant a new

trial.”).

Because Campbell has not shown that any of the alleged

instances of ineffective assistance of counsel deprived him

“of a fair trial, a trial whose result is reliable[,]” Strickland,

466 U.S. at 687, he cannot show that the accumulation of

these non-errors warrant relief. We therefore affirm the

district court’s judgment on this issue.

B. Apprendi claim

In a completely difference line of attack, Campbell argues

that his sentence violates the rule established by the Supreme

Court in Apprendi v. New Jersey, 530 U.S. 466 (2000). In

Apprendi, the Supreme Court held that “[o]ther than the fact

of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.”

Id. at 490. This court held in United States v. Page, 232 F.3d

536, 542-43 (6th Cir. 2000), that Apprendi also applies to the

determination as to the amount of drugs necessary to impose

the mandatory minimum sentences provided in 21 U.S.C.

841(b)(1). Apprendi does not require that a precise amount of

drugs be found by the jury; it suffices that the jury finds

16 Campbell v. United States No. 03-1178

beyond a reasonable doubt the minimum amount specified in

the indictment and that “the ultimate sentence does not exceed

the statutory maximum for this amount.” United States v.

Zidell, 323 F.3d 412, 429 (6th Cir. 2003).

The government argues that Campbell failed to raise his

Apprendi claim either in the trial court or on direct appeal.

But Campbell was tried and sentenced in 1998 before

Apprendi and its precursor, Jones v. United States, 526 U.S.

227, 243 n.6 (1999) (stating Apprendi’s general rule), were

decided. This court has noted that a defendant’s objection to

the quantity of drugs attributed to him might suffice to

preserve an Apprendi challenge for appeal. United States v.

Stewart, 306 F.3d 295, 311 (6th Cir. 2002).

The present case presents a different procedural posture,

however, in that Campbell is arguing that by timely objecting

on direct appeal to the drug quantities, he preserved his

Apprendi claim for his § 2255 proceedings. Apprendi was

decided in June of 2000, after oral argument in Campbell’s

direct appeal, but a few months before this court issued its

decision. Campbell therefore could have cited Apprendi as

supplemental authority while his direct appeal was pending.

Fed. R. App. P. 28(j) (“If pertinent and significant authorities

come to a party’s attention after the party’s brief has been

filed—or after oral argument but before decision—a party

may promptly advise the circuit clerk by letter, with a copy to

all other parties, setting forth the citations.”) (Emphasis

added). He in fact failed to do so. 

Because our ultimate disposition of this issue is not

dependent on whether or not Campbell preserved his

Apprendi challenge, we will assume without deciding that he

did. The parties do not dispute that if Apprendi applies to this

case, then the quantity of drugs Campbell allegedly possessed

should have been submitted to the jury and proved beyond a

reasonable doubt. Despite this, Apprendi errors are

considered to be trial-type errors subject to harmless-error

review. United States v. Copeland, 321 F.3d 582, 603 (6th
No. 03-1178 Campbell v. United States 17

Cir. 2003). Thus, if the government “can demonstrate beyond

a reasonable doubt that the jury would have found the

defendant liable for the drug quantity at issue in sentencing,

this court must consider the error harmless and sustain the

defendant’s sentence.” Id.

Campbell’s 324-month sentence was subject to the

enhanced sentencing range governed by 21 U.S.C.

§ 841(b)(1)(A), which increases the range of a defendant’s

sentence from no mandatory minimum and a 20-year

maximum prescribed in 21 U.S.C. § 841(b)(1)(C) to a

mandatory minimum of 10 years and a maximum of life if the

conviction involves more than one kilogram of heroin or

more than five kilograms of cocaine. The increase in

Campbell’s sentencing range, therefore, was attributable to

the amounts of heroin and cocaine involved in the conspiracy.

We agree with the R&R’s conclusion that once the jury found

beyond a reasonable doubt that Campbell was involved in the

conspiracy, “it could have had no doubt that the conspiracy

involved more than one kilogram of heroin and more than

five kilograms of cocaine.”

The police seized 34 kilograms of cocaine and 2 kilograms

of heroin on a single occasion from one of Campbell’s

coconspirators, to say nothing of the 150 kilograms or more

of cocaine and heroin proven to be involved in the overall

conspiracy. “If this jury was going to convict [Campbell] at

all—which it plainly did— there is simply no way on this

record that it could have failed to find that he was conspiring

to distribute” one kilogram or more of heroin and five

kilograms or more of cocaine. United States v. Nance,

236 F.3d 820, 826 (7th Cir. 2000). Accordingly, we affirm

the district court’s denial of relief to Campbell on his

Apprendi claim. 

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the

judgment of the district court.