*

 On October 2, 2006, we granted the appellant’s motion to waive oral

argument. Therefore, the appeal is submitted on the briefs and the record. See Fed.

R. App. P. 34(f).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted November 1, 2006*

Decided December 14, 2006

Before

Hon. ILANA DIAMOND ROVNER, Circuit Judge

Hon. DIANE P. WOOD, Circuit Judge

Hon. TERENCE T. EVANS, Circuit Judge

No. 06-1841

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

KENRA SHARAY CAMPBELL,

Defendant-Appellant.

Appeal from the United States

 District Court for the

 Central District of Illinois.

No. 05-40112-001

Michael M. Mihm, Judge.

O R D E R

Kenra Campbell pleaded guilty without a plea agreement to possession of a

firearm by a felon. See 18 U.S.C. § 922(g)(1). After increasing her offense level because

UNPUBLISHED ORDER

Not to be cited per Circuit Rule 53
No. 06-1841 Page 2

she tried to shoot a police officer with the gun and created a substantial risk of serious

bodily injury to the officer, the district court sentenced Campbell to 120 months’

imprisonment. See U.S.S.G. §§ 2K2.1(b)(5), 3A1.2(c)(1). Campbell argues that she

should be resentenced because the district court’s finding that she pointed the gun at

the officer and pulled the trigger is clearly erroneous. She also argues that her

sentence is unreasonably high. Because the court’s factual finding is not clearly

erroneous and Campbell’s prison sentence is reasonable, we affirm. 

According to the probation officer’s account in the presentence investigation

report, Officer Brian Morrissey, from the East Moline, Illinois, police force,

apprehended Campbell after receiving a disturbance call reporting that a person was

being attacked by four people, one of whom matched Campbell’s description. Once

Morrissey arrived at the caller’s location, he spotted Campbell fleeing and gave

pursuit. He soon caught up with her and escorted her to his squad car. As Morrissey

began to pat Campbell down for weapons, she tried to pull away. He then handcuffed

her right hand, but before he could secure her left hand, she reached into her

waistband, pulled out a semi-automatic pistol, and pointed it at his thigh. As Morrissey

grabbed for Campbell’s left hand, he heard the hammer of the pistol fall. Morrissey,

who is a foot taller and 115 pounds heavier than Campbell, wrested control of the gun

from her. He then inspected the gun and found that it was loaded with five live rounds

of ammunition. The firing pin indicated that the trigger had been pulled, but there had

been no round in the chamber at the time. 

Based upon these facts, the probation officer recommended that the district

court apply U.S.S.G. § 2K2.(b)(5), which provides for a four-point increase in offense

level when a defendant convicted under § 922(g) “used or possessed any firearm or

ammunition in connection with another felony offense.” The probation officer reasoned

that by pointing the gun at Morrissey and pulling the trigger, Campbell possessed the

gun in connection with the felony offense of attempted aggravated battery with a

firearm. See 720 ILCS 5/8-4, 5/12-4.2(a)(1), (b) (defining aggravated battery with a

firearm as “knowingly or intentionally by means of the discharging of a firearm []

caus[ing] any injury to another person”); People v. Jones, 682 N.E.2d 441, 443 (Ill. App.

Ct. 1997) (noting that Illinois recognizes the offense of attempted aggravated battery).

Alternatively, the probation officer noted that by pulling the trigger of a loaded gun

pointed in the direction of another person Campbell attempted to commit aggravated

discharge of a firearm, also a felony offense. See 720 ILCS 5/8-4, 5/24-1.2(a)(2). The

probation officer recommended an additional six-level increase because Campbell

created a substantial risk of serious bodily injury to a law enforcement officer. See

U.S.S.G. § 3A1.2(c)(1). The probation officer calculated a guidelines imprisonment

range of 130 to 162 months, making the 10-year statutory maximum the guidelines

sentence. See 18 U.S.C. § 924(a)(2); U.S.S.G. § 5G1.1(a). 
No. 06-1841 Page 3

Campbell objected to the report on two grounds. First, she contended that the

government failed to prove by a preponderance that she possessed the gun in

connection with a felony offense. Second, Campbell asserted that it would be

impermissible to impose two guidelines adjustments based on the same conduct—

attempting to shoot Officer Morrissey. Campbell chose not to testify at the sentencing

hearing and instead offered a police report documenting that during a post-arrest

interview she had denied pointing the gun at Morrissey or pulling the trigger and had

said she was only trying to “ditch the handgun” because she did not legally possess it.

Counsel argued that, given the speed of the incident and the size disparity between

Campbell and Morrissey, it was more likely that Morrissey caused the gun to fire

during his effort to disarm her. 

Officer Morrissey, however, did testify at sentencing and not only repeated the

probation officer’s account but also re-enacted the events for the court. Morrissey

insisted that when Campbell grabbed the gun she was holding it with her finger

through the trigger guard as if she “were going to fire it.” He clarified that he heard the

hammer of the gun fall while the gun was pointed at his leg. He also testified that he

could not have pulled the trigger because he grabbed Campbell’s hand below the

trigger guard.

The district court believed Officer Morrissey and overruled both of Campbell’s

objections. After acknowledging that the application of both § 2K2.1(b)(5) and

§ 3A1.2(c)(1) turned on who caused the gun to fire, the district court determined that

the evidence was “much more consistent” with a finding that Campbell intentionally

pulled the trigger while pointing the gun at Morrissey’s leg. The court reasoned that

Campbell’s explanation that she drew the gun to get rid of it, while being handcuffed

by Morrissey, “doesn’t pass the laugh test.” The district court also held that the upward

adjustments based on Campbell’s use of the gun in an attempted aggravated battery

and Morrissey’s status as a law enforcement officer could both be applied without

double-counting because they addressed different aspects of her conduct—the act of

pulling the trigger and the identity of the victim. 

On appeal Campbell argues that the district court clearly erred in finding that

she pointed the gun at Officer Morrissey and pulled the trigger. We review findings of

fact and credibility determinations for clear error, United States v. Woods, 233 F.3d

482, 484 (7th Cir. 2000), and defer to the district court’s credibility determinations

“unless the court credited testimony that was essentially unbelievable as a matter of

law,” United States v. Smith, 308 F.3d 726, 746 (7th Cir. 2002). There is no clear error

in the district court’s decision to credit the presentence investigation report and Officer

Morrissey’s sworn testimony over the unsworn, hearsay statement of the defendant.

See United States v. Torres-Ramirez, 213 F.3d 978, 980-81 (7th Cir. 2000) (“When the

sentence rests on testimony under oath . . . it is enough that the judge believe the
No. 06-1841 Page 4

witness—unless the testimony is illogical or contradicted by documents or other

physical evidence, making it clearly erroneous to accept the witness’s version of

events.”); United States v. Krankel, 164 F.3d 1046, 1054-55 (7th Cir. 1998) (holding

that “bald, unsupported assertions” by the defendant cannot refute presentence

investigation report). Campbell directs us to no inconsistencies in the credited

testimony; she argues only that Morrissey’s version of events is improbable given their

size disparity and the force with which Morrissey grabbed her hand. We see no reason

to overturn the district court’s findings of fact, made with the benefit of a re-enactment

of the events and the opportunity actually to observe the size disparity between

Morissey and Campbell. 

Campbell also challenges the reasonableness of her prison sentence, arguing

that the sentencing court should have exercised its discretion to impose a shorter term

because of her mental health problems, particularly undiagnosed depression. Her

sentence, capped by the statutory maximum, falls below the properly calculated

guidelines range and is therefore presumed reasonable. See United States v. George,

403 F.3d 470, 473 (7th Cir. 2005) (“It is hard to conceive of below-range sentences that

would be unreasonably high.”); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.

2005). The district court considered Campbell’s mental health issues during sentencing

and, pursuant to 18 U.S.C. § 3553(a)(2), selected the 120-term of imprisonment. We

note, finally, that we have taken into account the fact that the Supreme Court has

granted certiorari in Rita v. United States, 127 S.Ct. 551 (2006) (No. 06-5754), in order

to decide whether a presumption of reasonableness is consistent with its Booker

decision. In Campbell’s case, however, the district court’s attention to the § 3553(a)

factors and our own review of the record satisfy us that the ultimate sentence was

reasonable, even without the benefit of any such presumption. 

Accordingly, the judgment of the district court is AFFIRMED.