* The Honora ble Will iam W Schwarzer, Senior Unit ed States Distr ict Judge for the Northern District of Californi a, sit

ting by designat ion.
1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0115P (6th C ir.) File Name: 04a01 15p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
R OBER T C AMPB ELL , Petitione r-Appell ant,

v.

U NITED S TAT ES OF A MERICA , Respondent-Appellee. X - - - -
> , - - N No. 03-1178

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 01-73211—Arthur J. Tarnow, District Judge.

Argued: March 18, 2004 Decided and Filed: April 20, 2004

Befor e: COLE and GI

LMAN , Circuit Jud

ges; SCHWARZER, Senior District Judge. *

_________________ COUNSEL

ARGUED: Dennis J. Clark, PLUNKETT & COONEY, Detroit
, Mic higan, for Appellant. Michael R. Mueller, 2 Campbell v. United States No. 03-1178

UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. O N BRIE F: Dennis J. Clark, PLUNKETT & CO ONE Y, Detroit, Michiga n, for Ap pellant. Michael

R. Mueller, UNITED STATES ATT ORNEY, Detroit, Michigan
, for Appellee.

_________________

OPINION

_________________ RONAL D LEE GI

LMAN, Circuit Judge. Robert Campb el l appeals from the district court’s denial of his post-conviction motion to vacate his sentence. For the re asons set forth below, we AFFIRM

the judg ment of the

district c ourt.
I. BACKGROUND

After two mistrials

as a result of hung juries, a third grand jury indicted Campbell on the following three c ounts: (1) conspira

cy to possess

controlle d substanc es with the in tent to di st ri bu te an d c on sp ir ac y to ac tu al ly dist ribute the controlle d substances, al l in violation o f 21 U.S.C. §§ 841(a)(1) and 846; (2) aiding and abetting the possession of cocaine with the intent todistribute, in violation of 21 U.S.C. § 841(a)(1) and 1 8 U.S.C. § 2; and (3) aiding and abetting the posse ssion of he

roin with t

he intent to distribute, in violation of 21 U.S. C. § 8 41(a)(1) and 18 U.S.C. § 2. In

July o f 1998, a

jury found Cam

pbell gu ilty
on all count s. The district court sentenced Campbell to 324 months of imprisonment and 5 years of supe rvised release. Campbell app eal ed, all egi ng n um ero us e rro rs. InOctober of 2 000, this c ourt issue d an amen ded opinion that af

firme d his conviction and sentence by a 2 to 1 vote, with the dissent favoring a ne w trial because of the alleged pr osecutorial misconduc

t that occ urred du ring cl osing ar

gument.No. 03-1178 Campbell v. United States 3

Campbell petitione d to vaca

te his s entence

pursuant to 28 U.S.C. § 2255 in August of 2001. The casewas referred to a magis trate judge, who issued a 30-page Repor t and Recommendation (R&R) concluding that the motion shou

ld be denied. Over Campbell’s objections, the district co ur t adopted the R&R. Campbell then applied for a certificate of appeala bility as to nine issues, all of which the district court certified. In January

of 2003, Campbell filed a timely notice of appea l.

II. ANALY SIS

A. In effe ctive- assi stan ce-of -coun sel cl aims

C ampbell asserts numerous ineffective-assistance-of

counsel claims on app eal. To prevail on these claims, he must establish that (1) his “counsel’s performance fell below
anobjectiv e standar

d of rea sonableness, and (2) there is a
reasona ble probability that, but fo r th e deficiency , the outcome of the procee dings wo uld have been different.” Griffin v. United States
, 330 F.3d 733, 736 (6th Cir. 2003). “The objective stand ard o f reasonablene ss is a hig hly defer enti al one and includes a strong presumption that
couns el's conduct f

alls wit hi n the wide

range of reas onable professional assistance.” Mason v. M itchell , 320 F.3d 604, 616-17 (6th Cir. 2 003) (q uotation marks omitted). A “re ason able probabil ity”

has been defined by t he Supre me Courtas “a pr

obability sufficie nt to under

mine conf

idence i n the outcome.” Stricklan d v. Wa shington , 466 U.S. 668, 694 (1984).

When deci ding ine ffectiv e-assist ance cl aims, courts need notaddress

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 u nder 28 U .S.C. § 2255, are reviewed de novo. Griffin , 330 F.3d at 736. 4 Campbell v. United States No. 03-1178

1. Ineffec

tiveness based upon alleged Speedy Trial Act violation Campbell first argues that

the district court erred in deny ing his claim that his counsel ren der ed ineffective assistance by notmo ving for a dismissal of the indictment based upon alleged violations

of th e Speedy

Trial Act. 18 U.S.C. §§ 3161-74. The Act requires that a criminal defen dant b e brought to trial within 70 days after the filing of

an indictment
or an arraignment, whichever is late r. 18 U.S.C. § 3161(c)(1). A retrial that follows a mistrial must start “within 70 day s fromthe date the action occasioning the retrial becomes final

. . . .” 18 U. S.C. § 3161( e). I f a defe ndant is not broughtto trial within 70 da

ys, taking i

nto acco unt excluda

ble time periods under the Act, the district c ourt is obli gated t o dismiss the indictmen

t on the de fendant ’s motion. 1 8 U.S.C. § 3162(a) (2); United

States v. Jenkins , 92 F.3d 430, 438 (6th Cir. 19 96). The dismissal may be either w ith or without prejudice. Id. Campbell alleges the following three violations of the Speedy Trial Act: (1) 83 day s elapsed between the end

of his first trial and the st art of his second, (2) approximately 157 da ys elapsed between the second mistrial and the dismissal of the second in

dictm ent , and (3) 78 day s elapsed between the dismissal of t he second indictment and Campbell’s arraignment

on the t hird superseding indictment. The magistr ate judge’s R&R concludes that even if violations of the Speedy

Trial Act did

occur, C ampbell c annot dem onstrate t ha the wa s p re

ju di ce d a s r eq ui re d b y Strickland . For the reasons that follow, we agree.

Inhis brief, Campbell asserts that the alleged violations of the Speedy

Trial Act prejudic ed him, but he provid

es little explanation and no au

thority to support

his conte

ntions. Campbell sa ys that the prejudice “is obvious” and that “there clearly was prejudice suffered by Campbell.” But he does not allege any spe c ific prejudice, such as a witness becoming unavailable.No. 03-1178 Campbell v. United States 5

Under the Speed

y Tr ia l Act, courts must consider the following three factors when determining whether to dismiss
anindictment with or

without prejudice: “[1] the serio usness of the offense; [2] the facts and circumstanc e s of the c ase whichled to the dismissal; and [3] the impact of a reprose cuti on o n the administration of [the Act] and on the administ rat ion of justice.” 18 U.S.C. § 3162(a)(1). As explained in the R&R, “[e]ach of these fact ors w ould have counseled a dismissal withoutprejudice” in Campbell’s case:

Defendan t wa s charged with involvement [in] an extensive, serious d

rug dist r ibution conspir

acy, for which he was se ntenced to nearl y 30 ye ars’ imprisonment. As to the second f

actor, t he delay s in defe ndant’s c ase were notextensive and were o ccasioned in part by the complexity of the procedura l issues involved, including two previous hung juries and a reindictment becaus e o f
animproperly constituted g rand jury. F

urther, there is no evidence of bad

faith or any attempt to take a

dvantage of the delay on the

part of the prosec

ution. Finally , as to the third factor , defen dant does not allege that he suffered any actual prejudice as a result of the delay , and ther e is
no allegation tha t the government engag ed in any improper behavior which must

be deter red in or der to insure compliance with the Act. In the se circ umstance s, any dismissal u

nder the Act would

have be en wit

h out prejudice.

We have no basis to fa

ult t he magi strate ju

dge’s a naly sis. Becau se Campbell cannot showthat he was pre judiced by hi s trial counsel’ s failure

to r equest dismissal for the alleged violations of the Spe edy Trial Act, we affirm the district court’s denial of relief t o Campbell

on this cla

im.

2. Ineffec

tivene ss b ased upon f

ailure to re

quest a downward de

parture Campbell next argues tha

t his trial counsel rendered ineffect iv e assistance by f ailing to request a downward 6 Campbell v. United States No. 03-1178

departure at sente

ncing b ased upo n Ca

mp bell’s crime-free post-off ense conduct and based upon the dispropor tionality between his sentence and

those of h

is codef endants. Neither post-off ense behavior nor dispro p ortionali ty, however , is mentioned

in the Sentencing Guidelines as a b asi s for departure. U.S. Sentencing Guidelines §§ 5 K2.1-.21 ; see Koon v. United States , 518 U.S. 81, 96 (1996) (noting that a sentencingcourt “m

ust b e ar in m ind t he [S enten cing] Commission’s expectation that departures based on grounds not mentioned in

the Guide lines will

be highly infr

equent”).

Under the Sente ncing G uideline s, the sentencing court may impose a sentence below the guideline ra nge where a mitigating circumstance exists “of a kind, or to a degree
, not adequa tely taken into consideration b y t he Sentencing Commission in

formulating the guideli

nes that s hould res

ult ina 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-off ense beha vior nor dispr

oportiona lity is mentione d in th e Sentencing Guidelines as a bas is f or departure. See U.S. Sentencing Guid elin es Manua l § 5H1.1- .12 (listin

g “ce rtain offender characteristics” relevant “to the de termination of whether a sentence should be outside the applicable guideline range”). Campbell argues, however, that

his lack o f involve

ment in drug activity

or other criminal conduct s ince his a

rrest ri ses to the level of “extraordinary post-offense behavior.” But as this court noted in United States v. Biehl
, [s]ome degree of presenten ce rehabilitation is to be expected from a penitent defenda

nt, whether due to a true
acc ep tance of responsibility or from o ne who simp ly wants to “put his best foot forwar d” at sente ncing w ith hopes of r ece iving le

niency from the s entenci

ng cour t. Furthe rmore, in order

to keep the tempor

ary liberty defendant was giv en by

delay ing his sentenc e for al

most three years, a

biding by the fa

irly ty pical terms of h i sNo. 03-1178 Campbell v. United States 7

presentence rele ase i s not u nexp ected . As the F irst Circuit st ated, “s

uch pred

ictable r eaction s, while laudable, fall shy

of what w e believ e is necessa ry to take cases out of the heartland.”

Nos. 98-3318, 9 8-334 6, 1999 WL 98600, at *3 (6th Cir. Jan. 25, 1999) (unpu blis hed op inio n) (qu otin g United States

v. Sklar , 920 F.2d 107, 117 (1st Cir. 1 990)). B ecause Ca mpbell failed to

show that he was pr

ejudice d by

his counsel’s failure to move for a downward de parture based upon either disproportionality or post-offense behavior, we affirm the district

court’s denial of relief t o Campbell on this ground.

3. Ineffective assistance based upon trial proceedings Campbell also argues that the following err ors occu rr ed dur ing the trial that deprived him of his Sixth Amen dmen t right to the eff ective a ssistance

of counse l:

a. Failure

to object to governme

nt w itness’s reference to o rga nize

d cr ime Campbell contends that his trial counsel was ineffective for failing to ob

ject a nd mo ve for a mist rial a fter go vern ment
w itness Richard Carroll, a New York City police o fficer
, testified that he was assigned to the Orga nizedCrime Control Bureau at the time of his tes ti mo ny. Th is te st im on y, according to Campbel l, “implic itly lin ked Cam pbell to thi s criminal group which ha s [] strongl y negati ve conno tations in the minds of most citizen jurors.” T he R&R ’s tho rough analy sis of this issue explains why Campbell i s not entitle d to relief on this basis :
Alth ough defenda

nt conten

ds tha t this remark was “irrele vant, inflammatory and pre judicial,” he do es not state how he was prejudiced by this sing le refe rence t

o organized crime. Notably, the c omment wa s in no way connected

to his case, but

was simply

part of background 8 Campbell v. United States No. 03-1178

testimony concerning thewitness’s current employ ment. Nowhere inh is testimony did Carroll relate any of the allegations against defendant to organized crime, and he also testifie d that he w as assig ned to the Street Un

it, not the Organ

iz ed Cr ime Control Bureau, at the time he arrested [Campbe ll’s] coconspirator Car ol Bay less. Thus
, there is not a reasonable pro babi lity that the comment in fluenced

the jury’s ver

dict in any manner. See, e.g. , United States v. Catalano , No. 91-50372 , 19 92 WL 212322, at *2 (9th Cir. Se pt. 3, 1992 ) (per c

uriam) (defendant

not de nied a fair trial by prosecutor’s comments

concerning organized

crimewhere reference s were isolated a

nd not infl ammatory

); Unite d S tates v. Thirion
, 813 F.2d 146, 156 (8th Cir. 19 87) (defendant notdenied a fair trial by q uestion relating to whether defenda nt, an attor

ney , had rep

resente d an organized crimefigure ; the matter came up only once during the
co urse of a lengthy

trial and defendant’s answer linke d the client, and not the defendant
, to organized crime) . . . .

Becau se Campbell f

ails to show that this comment prejudiced him, we affirm the district court’s denial of relief to Campbel l on this issue.

b. Prejudici

al remarks to t

he jury Campbell argues that

his trial counsel rendered ineffective assis tance by making pr

ejudicial remarks to the jury dur in g his opening

and closi ng state ments. In his

opening statemen t, for example, Campbell’s counsel stated:

Perform the duties that your oath s ays that you will do. A nd wh atever y

our verdict is, it is. If y our verdict ultimately

is gu il ty, so be it; it’s guilty. That’s what our system is about . . . . Campbell contends that his counsel’s comments evidenced a “lack of concer n for the verdict ” and tha t his couns el shouldNo. 03-1178 Campbell v. United States 9

have instead argued “that a rea sonable do ubt, ordoubts, should arise from the evidence . . . .”

As noted in the R&R, thes e com ments “do not amount

to constitutionally ineffective a ssistance”:

Onthe contrary , counsel repeatedly emphasized the burden of proof, requiring the prosecutor to prov e th e charges against petitioner bey ond a reasona ble doubt. He also repeat

edly stated tha t, in his view and for the reasons he ex pl ai ne d a t l en gt h t o t he ju ry, the prosecutor had not met this burden. While counsel’s discussion of the burden of proof was per

hap s not as el oquent as

it could have been, c ounsel at

a ll times acted as an advocate for defen dan tand pres sed defe ndant’s c ase. I

n these circumstances, the comments of counsel do not amount to constitutionally ineffective assistanc e.
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 argue s that hiscounsel’s failure to request a jury instruction explaining

his theory

of the ca se amounted to the ineffective assistanceof counse l. In h is argument, however, Campbell d o es not demonstrate how he was prejudiced by this omission. The R& R explains th at Campbe ll

cannot show that he was prejudiced by counsel’s failure because his the ory was a

dequately c onveyed to the jury by the Court’ s instruct

io ns o n the elements of the government’s charg es and the burden of proof. Defendant’s th eo ry of the case was a simple denial of in vo lv em en t i n t he co ns pi ra cy.
The R&R’s reasoning is persuasive and we the refo re affirm the district court’s denial of relie f to Campbe ll on this cl aim. 10 Campbell v. United States No. 03-1178

d. Failure to call character witnesses Campbell contends that his case pr e sented the jury with a classic c redibilit y qu estion be cause

the government asserted that he was inv olved in drug activity and Campbell denied those allega

tions. He a

rgues t hat char acte r wit nesses “testifying

to [his] repu

tation for truthfulness and v eracity would have be en sig

n ificant. ” Accor

ding to Ca

mpbell, character witnesses were a

vailable to testify on his behalf, but his trial cou

nsel fail ed to cal l them. Campbell concludes that this failu re amoun ts to the ine ffectiv e assista nce of c ounsel.

Bot h the R&R and the government note, however
, tha t Campbell failed to provide any

information regarding

“what witnesses should have be en ex amined more fully or w hat additional witnesses should have been called .” Co ns eq ue nt ly, Campbell cannot r

ebu t the stron

g presu mption that

his attorney’s actions were the produ c t o f s ou nd tr ia l s tr at eg y. Strickland v. Washington , 466 U.S. 668, 690 (1984) (“[T]he court should recognize that counsel is stro ng ly presume d to have rendered adequa

te ass istance and made all significant decisions in the exercise of reasonable professional judgment.”). We accordingly affirm the district court’s denial of relie f to Campbe ll on this ba sis.

e. Eliciting of

prejudici al testimony Campbell argues that his trial counsel rendered ineffective assistance by eliciting

prej udicial testimony from three govern men twitnesses on cross-examination. During the cross-examinationof a Drug Enforcement Ag ency (D EA) agent, Campbell’s trial counsel asked whether the age nt felt that Campbell “may hav e beensomehow with or involved with” the other members of the alleged conspiracy

. Campbell contends that such testimony indicating a connection

between Campbell and “ad mitted dru

g traf ficker s . . . could

only have inured to Campbel l’s detri ment.” With

regar d to this test imony
, the R&R notes that the questions preceding and following the challenged question show that Campbell’s trialNo. 03-1178 Campbell v. United States 11

counsel was atte

mpti ng t o cast doubt upon the DEA agent’s belief:

Counsel was trying

to show that the agent’s belief wa s not credi ble given that he did not have the [car that Campbell was traveling in] follow ed by another agent when it left th e 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

carry ing any thing either to or fromt he room in which the other conspirators were apparently c onducting the transaction. Campbell next argues that

his counsel’s cross-examination of a police officer was improper bec ause an i nq ui ry as to where the police officer had previou sly seen a picture of Campbel l led the officer to respond that he had “seen a pictur e on a prior narcotic raid.” This answer is most likel y notwhat cou

nsel expec

ted, but, a s the R&R notes, the question was par

t of a legitimate str

ate gy on the

part of Campbell’s attorney to question the off icer ab out his observa tions and i dentific ation of Ca mpbell.

Fi na ll y, Campbell argues that his defens e counsel’s question to a DEA a

gent a bout whether he was “rely ing on the word of government wi tness es Carol Bay less, Orlando Bay less, Larry

Anderson, and Christop her O wens” was improper given that the DEA agent answered: “Not solely the f act of the people that you were discussing.” Campbe l l contends that this answer implied that there were o ther witnesses and other eviden ce thathad not been presented at trial and that such evidence would have been dee med improper had it been elicited by

the prosecution. Again, we agree with the R&R’s analy

sis, which is as follows:
This isolated stat eme nt came after counsel elicited repeat edly

fr om the agent that he was, in fact, rely ing primaril y on the word

of the government witnesses, and th at he had no independent evidence, throug h 12 Campbell v. United States No. 03-1178

surveillance, to indicate that the defendant was involved inthe crime . In li ght of c ounsel’s success ful cros sexamination, 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 te st if y.
The R&R reasoned overall that [w]hile counsel’ s question s t o t he witnesses may illustrate a classic example of the first rule of cr o ssexamination; don’t

ask a question

unless you know what the answer will be, the only issue f or the Cou

rt is whether counsel’ s conduct i

n asking the quest

ion fell below an objectiv e standa

rd of re asonable

ness.
We agree with theR&R’s conclusion that Campbell has failed t o show that his counsel’s performance was defic ient and therefore affirm

the district c ourt’s de

nial of re lief to Campbell on this issue. f. Failure to impe

ach witness O

rlando Bayl

ess
Campbe ll contends

that his tr

ial couns el’s fai lure to impeach Orlando Bay

less—a government

witness and one of Campbell’s coconspirators—constituted the ineffective assistance of counse l. He arg ues that h is trial cou

nsel shoul d have impeach ed Bay

less r egarding inconsistencies betwe en Bay less’s testimony

at Campbe ll’s second and thir d tr ial s concerning

the amount of

money Campbell

used to pur

chase the drugs. Campbell also c ontends that his trial counsel should have impe ac hed Bay

less with the statement that Bay less initially ga

v e to the police, in which he denied any knowledge of the money

seized by the police.

We agree with the R&R’s analy

sis and conclusi on on this issue, wh ich is as f ollows:No. 03-1178 Campbell v. United States 13

It is true that

counsel could have chosen to attack Bay less through the inconsistencies in his testimony. However, the inconsiste

ncies i de ntified by defe ndant were relative ly mi nor, addressing whether defe ndant had b rought $70,000 or $80,000 to the motel. Cou nse l instead chose to focus his attack on Bay less on the substantial sentence reduction Bay less wa s h oping to receive in exchang e for his testimony, and

on Bayle ss’s signif icant drug re lated activity . This was a reasonable trial strate gy . Furthe

r, defe ndant is unable to e stablish that he was prejudiced by

counsel’s failure to question Bay less abou t these min

or incons istencie s.
Ac co rd in gl y, we affirm the district court’s denial of relief to Campbell on this issue.

g. Fai lure

to object

to allege

d prosecu tori

a l misconduct Campbell argues that his trial counsel’s failure to object to several instances of alleged prosecutorial misconduct during the government’s closing arg ument and to move for a mistrial based upon that al leged misconduct constituted the ineffect iv e assistance of counsel. Spec ifical ly, Campbell contends that the prose c utor improperly (1) vouc hed for the credibility

of the government’s witnesses, (2) expres sed his personal opinion as to Campbell’s guilt, and (3) made infl ammator y em ot io na l a pp ea ls to th e j ur y. Campbell raised these id enti cal claims as substantive issues inhis direct

appeal. A prior

panel of this court held that the prosecutor’s r e marks were isolated and that “[e]ven if the closing argument improperly appealed to the emotions of the ju ry, the err

or, if an y, was not pla

in becau se there was ample evidence in the record to convict Robert.” Unite d States v. Campbell
, Nos. 98-1782, 98-2174, 2000 WL 1597858, at *4 (6th Cir. Oct. 19, 2000) (unpublished opinion). In Campbell’s § 2255 proc eeding s, the magistrate j udge a naly zed the cl aim of ineffective assistance of counsel based upon the alleg e d 14 Campbell v. United States No. 03-1178

prosecutorial misconduct and noted th at this court had rejected the substa

ntive cla ims on dire ct a

ppeal. Given this court’s resolution of these claims, the R&R concluded that Campbell could not show that h

is co unsel was deficient or t hat he was prejudiced by his counsel’s failure to object or move for a mistria l.

The district c ourt disa

greed 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 dis t ri ct court said that i

t “would have found prosecutorial misconduct.”

We need not resolve this difference of opinion between the magistr ate judge and the district judge, especially because we do not read this court’s prior decision as absolving the prosecutor

of an y mis conduct. The ear lier dec ision on this issue is instead based upon the isolated nature of the remarks and the lack of preju dice to Ca

mpbel l. To succ eed on his ineffective assistance of counsel cl ai m, Campbel l must demonstr ate “that there is a rea sonable probability that, but for counsel’s unprofes si onal errors, the result of the proceed in g would have been different.” Strickland v. Washington
, 466 U.S. 66 8, 694 (19 84). This he has been unable to do. In the case bef

ore us, no less than four members of the alleged drug conspirac y testified ag ainst Campbell at trial. Given the

overwhe lming evidence e stabli shi ng Campbell’s guilt, we believe that he would n

ot have be en able to show that, but for his attorney’ s failure to object to the prosecutor’s alleged

misconduct, the re sult would have been differe nt. We accordingly

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

h. Ineffective

assistance

based upon t

he cumulativ

e effect of all alleged errors Campbell’s final ine ffectiv e-assist ance-o f-couns el claim

is that the “numerous errors concerning matters of greatNo. 03-1178 Campbell v. United States 15

importance . . . had to

have [had

] a su bstantial effect on the j ury.” We acknowledge that trial-level err ors that would b e considered

harmless when viewed in isolation of each other might, when co nsidere d cumulat ively

, require reversal of a conviction. United States v. Pa rker , 997 F.2d 219, 221 ( 6th Cir. 1993). But we also a gree with the R&R that “the accumulation

of non-error s c annot collectively a mount to a violation of due process.” See McKinnon v. Ohio , No. 94- 4256, 1995 WL 570918, at *1 2 (6th Ci r. Sept. 27, 1995) (unpublished

opin ion) ( quot ing United States v. Rivera , 900 F.2d 1462, 1471 (10th Cir.1990) (“[C]umulative-error analy sis should evaluate only the effect of matter determined to be in e rror, not the cumulative effect of non-errors.” ); United States v. Lumpkin , 192 F.3d 2 8 0, 290 (2d Cir. 1999) (“[T]he a ccumula

tion of non-errors does not warrant a new trial.”).

Becau se Campbell ha s not shown that any of the alleged instances of in ef

fective assistanc e of coun sel depr ived him “of a fair trial, a tri al w hose result is reliable[,]” Strickland
, 466 U.S. at 687, he cannot show t hat the a ccumulation of thesenon-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 t he Supre me Courtin Apprendi

v. Ne w Jer

sey , 53 0 U. S. 466 (20 00) . In Apprendi
, the Supreme Court held that “[o]ther than the fact of a prior conviction, any fa

ct that increases the penalty for a crimebeyond the pre scr i bed statutory maximum must be submittedto ajury, and prove d beyond a reasonable doubt.” Id. at 490. Th

is court h eld in United

States v. Page , 232 F.3d 536, 542-43 (6th Cir. 2000), that Apprendi also appl ies to the determination

as to the a

mount of dr

ugs nec essary

to impose the m andator

y min imum sente

nces provided in 21 U.S. C

. 841(b)(1). Apprendidoes 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 spe cified in the indictment and that “the u ltim ate sentence does not exceed the statutory maximum for this amount.” Unit ed State s v. Zidell , 323 F.3d 412, 429 (6th Cir. 2003).

The go vernmen t argue s that Camp bell fail ed to rai se his Apprendi claim either in the trial court or on di rect app eal. But Campbel l wa s tried and sentenced in 1998 before Apprendiand its precursor, Jones v. United Sta tes, 526 U.S. 227, 243 n. 6 (199 9) (st ating Apprendi ’s general rule), wer e decided. This court has noted that a defendant’s objectio n to the quantity

of drug s attribut

ed to him mig

ht suffic e to preserve an Apprendi challenge for appeal. United Stat es v. Stewart , 306 F.3d 295, 311 (6th Cir. 2002).

The present

case pr esents a diff

erent procedural posture, however, inthat Campbell is arguing that by timely objecting
on di rect ap

peal to th e drug

quantitie s, he pre served h is Apprendiclaim for

his § 2255 proceed

ings. Apprendiwas decided in June of 2000, after oral argument in Campbell’s direct appeal, but a few

months befo re this cour t issued its decis ion

. Campbell therefore could have cited Apprendi as supplemental autho rity whil e his d irect appeal was pen ding. Fed. R. App. P. 28(j) (“If pertinent and significant authorities
come to a party’s a

t t ention after the party ’s brief has been filed— or after oral a rgu ment but before decision —a party may promptly advise the circ

uit clerk by letter, with a cop

y to all other pa

rties, se ttin g forth the

citations .”) (Emphasis added). He in fact failed to do so.

Becau se our ultima

te disposit

ion of this i ssue is not dependent

on whe the r or not Ca mpbell pre served h

is Apprendi challenge, wewill assume withoutdeciding that he did. The parties d

o not disput

e that if Apprendiapplies to this case, then the quantity of drug s Campbell allegedly possessed should have been

submitted to the jury and proved bey ond a reasonabl e d oubt. Despite this, Apprendierrors are considered

to be trial-type e

rrors subject to harmless-error

r eview. United States v. Copeland , 321 F.3d 582, 603 ( 6thNo. 03-1178 Campbell v. United States 17

Cir. 2003). Thus, if the government “can demonstrate beyond
a reasonable doubt that the jury would have fo un d the defendant liable for the drug quantity at issue in sent encin g, this court mus t conside

r the er ror har mless a nd sus tain the defendant’s sentence.” Id. Campbell’s 324-month

sentenc e was su

bje ct to the enhanced sentencing range g overne d by 2 1 U.S.C. § 841(b)(1)(A), which increases the r ange of a d efendant’s
sen tence from no mandatory minimum and a 20-year maximum prescribed in 2 1 U .S.C. § 841(b)(1)(C) to a mandatory

minimum of 10 years a

nd a maximum of life if the convictioninvolves more than one kilogram of heroin o r more than five kilograms of coc aine. Th e incre ase in Campbell’s sentencing ra nge, theref

ore, wa s attribut

able to the amounts of

heroin and coc aine invo lved in

th e c on sp ir ac y. We agree with the R&R’s conclusion that once the jury found beyond a reasonabledoubt that Campbell was involved in the
co ns pi ra cy, “it

c ould have had no doubt that the conspiracy involved more than one kilogram of heroin and mor e than five kilograms of cocaine.”

The police seized 34 kilograms of cocaine and

2 kilogr ams of heroin on

a single occasio n from one of Campbell’s coconsp irators, to sa

y no thing of the 150 kilograms or more of cocain e and he roin prov en to be in volved in t

he overa ll
co ns pi ra cy. “If

this jury wasgoing to convict [Campbell] at all—wh ich it plainly

did— ther

e is simply

no way on this record that it could have failed to find that he was conspiring to distribute” one ki log ram or more of heroin and five kilogra ms or more of cocaine. United States v. Nance
, 236 F.3d 820, 826 (7th Cir. 2000). Accordi ngly, we affirm the distric t court’s

denial of

relief t o Campbell

on his Apprendiclaim.

III. CONCL USION

For all of the reasons set forth abo ve, w e AFFIRM the judgmen t of the dis trict cou

rt.