USA v. John Campanale, Jr.

Filing

Opinion issued by court as to Appellant John Anthony Campanale, Jr.. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-15446

Date Filed: 11/22/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15446
Non-Argument Calendar
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D.C. Docket No. 8:15-cr-00065-SCB-AEP-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN ANTHONY CAMPANALE, JR.,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 22, 2016)
Before HULL, WILSON, and JULIE CARNES, Circuit Judges.
PER CURIAM:

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Defendant John Campanale appeals his 87-month sentence, imposed after
pleading guilty to conspiracy to possess with intent to distribute ethylone and
possession with intent to distribute ethylone. On appeal, Defendant argues that his
sentence is unreasonable because the district court improperly considered some of
his behavior for both enhancement purposes and in determining whether a
downward variance was appropriate. After careful review, we affirm.
I.

BACKGROUND
According to the Presentence Investigation Report (“PSR”), Defendant was

involved in an ethylone distribution conspiracy in Tampa Bay, Florida, for
approximately six months in 2014. As part of the conspiracy, packages containing
ethylone were shipped from China to UPS stores and various other locations near
Tampa Bay. Defendant retrieved the packages and delivered them to alternate
locations, where they were picked up by other members of the conspiracy.
In June 2014, agents with the Drug Enforcement Administration and the
United States Postal Inspection Service conducted a controlled delivery of a
package containing ethylone. When Defendant retrieved the package from a UPS
store in Florida, he was detained and questioned by the agents. A subsequent
investigation revealed that eight other packages containing ethylone were delivered
to that UPS store between February and June 2014.

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A federal grand jury subsequently charged Defendant with: (1) conspiracy
to possess with intent to distribute ethylone, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C) and 846; and (2) possession with intent to distribute ethylone, in violation
of § 841(a)(1), (b)(1)(C). Defendant initially pled not guilty.
He later filed a motion to suppress statements he made during his initial
detention. At the suppression hearing, Defendant testified that he invoked his right
to an attorney after he was detained at the UPS store, but agents continued to
question him and did not provide him with an attorney. The agents denied that
Defendant had requested an attorney while he was detained. The district court
found Defendant’s testimony incredible and denied his motion. Defendant then
pled guilty to both counts of the indictment.
The PSR assigned Defendant a base offense level of 32 pursuant to U.S.S.G.
§ 2D1.1(c)(4), because the ethylone for which Defendant was accountable was the
equivalent of 4737.5 kilograms of marijuana. Defendant received a two-level
enhancement for obstruction of justice under U.S.S.G. § 3C1.1, based on the false
testimony he provided at the suppression hearing. The PSR also declined to assign
a reduction for acceptance of responsibility, resulting in a total offense level of 34.
Based on a total offense level of 34 and a criminal history category of I,
Defendant’s advisory guideline range was 151 to 188 months’ imprisonment.

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Defendant objected to the obstruction-of-justice enhancement under
§ 3C1.1, and to the PSR’s denial of a reduction for acceptance of responsibility.
At the sentencing hearing, the district court determined that Defendant clearly
obstructed justice by providing false testimony at the suppression hearing. The
district court also overruled Defendant’s objection to the denial of a reduction for
acceptance of responsibility, concluding that the Guidelines’ commentary provides
that an obstruction-of-justice enhancement typically means the defendant has not
accepted responsibility.
Defendant asserted that a sentence within the guideline range was not
reasonable, and that because his obstructive conduct already factored into the
Guidelines, it was not appropriate to consider that conduct in determining whether
a variance was warranted under § 3553(a). The district court expressed concern
that Defendant’s participation in the drug conspiracy was not his only lapse in
judgment, as he continued to make mistakes by lying at the suppression hearing.
Ultimately, the district court determined that a downward variance was appropriate
based on Defendant’s military service, post-traumatic stress disorder, and lack of a
criminal history. Consequently, the district court varied downward from an
offense level of 34 to 29, and sentenced Defendant to 87 months’ imprisonment.
This appeal followed.

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II.

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DISCUSSION
Using a two-step process, we review the reasonableness of a district court’s

sentence for abuse of discretion. United States v. Cubero, 754 F.3d 888, 892 (11th
Cir. 2014). First, we determine whether a sentence is procedurally reasonable. Id.
“A sentence may be procedurally unreasonable if the district court improperly
calculates the Guidelines range, treats the Guidelines as mandatory rather than
advisory, fails to consider the appropriate statutory factors, selects a sentence based
on clearly erroneous facts, or fails to adequately explain the chosen sentence.”
United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008).
After determining that a sentence is procedurally sound, we then examine
whether the sentence is substantively reasonable in light of the totality of the
circumstances and the 18 U.S.C. § 3553(a) factors.1 Cubero, 754 F.3d at 892. The
party challenging the sentence bears the burden of showing that it is unreasonable.
United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008). We will only vacate
a defendant’s sentence if we are “left with the definite and firm conviction that the
district court committed a clear error of judgment in weighing the § 3553(a) factors

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The § 3553(a) factors include: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
education or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution
to victims. 18 U.S.C. § 3553(a).
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by arriving at a sentence that lies outside the range of reasonable sentences dictated
by the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir.
2010) (en banc) (quotation omitted).
Though Defendant does not distinguish between his procedural and
substantive reasonableness arguments, he appears to challenge his sentence on both
grounds. As to procedural reasonableness, Defendant argues that the district court
procedurally erred by considering his obstructive conduct for both enhancement
purposes and in determining the extent of the downward variance. But
Defendant’s argument misses the mark, as we have “held that a district court can
rely on factors in imposing a variance that it [has] already considered in imposing
an enhancement.” United States v. Rodriguez, 628 F.3d 1258, 1264 (11th Cir.
2010); see also United States v. Amedeo, 487 F.3d 823, 833–34 (11th Cir. 2007)
(concluding that it was reasonable, when imposing an upward variance pursuant to
§ 3553(a), for the district court to rely on certain aspects of the defendant’s conduct
that had been considered in imposing an enhancement under U.S.S.G. § 3B1.3).
Moreover, Defendant’s reliance on U.S.S.G. §§ 5K2.0(d) and 5K2.21—
which address the consideration of particular conduct for purposes of upward and
downward departures—is misplaced because these provisions apply to departures
under the Sentencing Guidelines, not to variances under § 3553(a). See U.S.S.G.
§§ 5K2.0(d), 5K2.21. Finally, the record does not support Defendant’s argument
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that the district court failed to consider the § 3553(a) factors, as the district court
explicitly stated that it had considered those factors and, in fact, referenced several
factors in explaining why it had imposed an 87-month sentence. See United States
v. Docampo, 573 F.3d 1091, 1100 (11th Cir. 2009) (“[N]othing . . . requires the
district court to state on the record that it has explicitly considered each of the
§ 3553(a) factors or to discuss each of the § 3553(a) factors.” (quotations
omitted)).
Defendant’s sentence is also substantively reasonable. For starters,
Defendant’s sentence—which reflected a 64-month downward variance from the
low end of the guideline range—is well below the statutory maximum of 20 years’
imprisonment under 21 U.S.C. § 841(b)(1)(C). See Gonzalez, 550 F.3d at 1324
(suggesting that a sentence well below the statutory maximum is an indicator of
reasonableness); Cf. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008)
(explaining that, although we do not presume that a sentence within the guideline
range is reasonable, we typically expect it to be reasonable). Additionally, as
noted by the district court, Defendant’s 87-month sentence was sufficient but not
greater than necessary to accomplish the goals of sentencing, as it took into
account several of the § 3553(a) factors, including Defendant’s history and
characteristics, the nature and circumstances of the offense, and the need to protect
the public. In short, the record shows that the district court considered and
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weighed the conflicting factors in making its sentencing determination and
Defendant has not met his burden of showing that the district court arrived “at a
sentence that lies outside the range of reasonable sentences dictated by the facts of
the case.” Irey, 612 F.3d at 1190 (quotations omitted).
For the foregoing reasons, Defendant’s sentence is AFFIRMED.

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