USA v. Campbell

Filing 920061012

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 12, 2006 Charles R. Fulbruge III Clerk No. 05-41290 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus MICHAEL WAYNE CAMPBELL, Defendant-Appellant. -------------------Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:04-CR-27 -------------------Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* Michael Wayne Campbell appeals from his guilty-plea conviction for mailing threatening communications to a United States judge, in violation of 18 U.S.C. § 876(c). Campbell argues that the district court violated the principles of United States v. Booker, 543 U.S. 220 (2005), and Blakely v. Washington, 542 U.S. 296 (2004), by making findings at sentencing based on a preponderance of the evidence that increased his guideline range. The district court

was entitled to find by a preponderance of the evidence all facts necessary to calculate the guideline range, and there was no Sixth Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
*

No. 05-41290 -2Amendment error. See United States v. Johnson, 445 F.3d 793, 798

(5th Cir.), cert. denied, 126 S. Ct. 2884 (2006); United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied, 126 S. Ct. 43 (2005). Campbell also argues that the district court erroneously calculated his criminal history points and criminal history

category because it failed to treat a prior conviction for escape and a prior conviction for aggravated robbery as related. He

argues that the offenses occurred on the same day and that he was sentenced to concurrent terms in the same proceeding. Campbell has failed to show that these offenses were consolidated in state court or that the offenses had a close factual relationship, and the district court did not err. See United States v. Bryant, 991 F.2d

171, 177-78 (5th Cir. 1993); United States v. Ainsworth, 932 F.2d 358, 361 (5th Cir. 1991); U.S.S.G. § 4A1.2, comment. (n.3). We

also note that Campbell's criminal history category would have been the same even if the offenses had been considered related because the district court determined Campbell was a career offender. U.S.S.G. § 4B1.1(b). Finally, Campbell argues that the district court erroneously denied him a reduction for acceptance of responsibility. See

Approximately two weeks after pleading guilty to threatening a United States District Court judge, Campbell sent another

threatening letter to the judge.

The district court's conclusion

that Campbell failed to show a withdrawal from criminal conduct was

No. 05-41290 -3not without foundation. 406 (5th Cir. 1995). AFFIRMED. See United States v. Franks, 46 F.3d 402,