UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4785
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
IPOLITO CAMPOS, a/k/a Polo,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., District
Judge. (CR-03-32)
Submitted: April 28, 2004 Decided: June 24, 2005
Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Frank W. Dunham, Jr., Federal Public Defender, Larry W. Shelton,
Supervisory Assistant Federal Public Defender, Mary E. Maguire,
Assistant Federal Public Defender, Frances H. Pratt, Research and
Writing Attorney, Norfolk, Virginia, for Appellant. Paul J.
McNulty, United States Attorney, Michael J. Elston, Michael R.
Smythers, Joseph E. DePadilla, Assistant United States Attorneys,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Ipolito Campos appeals from his judgment of conviction
and sentence, based on a jury verdict finding him guilty of assault
of a law enforcement officer, in violation of 18 U.S.C.A. § 111
(2004) (Count 1); possession of a firearm by an illegal alien, in
violation of 18 U.S.C. § 922(g)(5)(A) (2000) (Count 2); use and
possession of a firearm in a crime of violence, in violation of 18
U.S.C. § 924(c) (2000) (Count 3); attempted murder of a law
enforcement officer, in violation of 18 U.S.C.A. § 113 (2000 &
Supp. 2004), 18 U.S.C. § 114 (2000) (Count 4); use of a false
immigration document, in violation of 18 U.S.C. § 1546(b)(2) (2000)
(Count 5); possession of an unregistered firearm, in violation of
26 U.S.C. § 5861(d) (2002) (Count 6); and false representation of
a Social Security number, in violation of 42 U.S.C. § 408(a) (2003)
(Count 7).
Campos appeals five counts of his conviction and his
sentence, alleging four errors by the district court: (1) refusing
to grant his motion for judgment of acquittal on Counts 1, 3, 4,
and 6; (2) refusing to instruct the jury on the defenses of
justification and innocent possession as to Counts 2 and 6; (3)
sentencing him on Counts 2, 4, and 6, when it applied the base
offense level for first-degree murder under USSG § 2A2.1; and (4)
sentencing him on Counts 1, 2, 4, and 6, when it applied the
enhancement provided for in USSG § 3A1.2(b). In accordance with
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our discussion below, we affirm Campos’ conviction, but vacate his
sentence and remand to the district court for resentencing.
I. CONVICTION
Campos first challenges the sufficiency of the evidence to
support his conviction on the assault, attempted murder, and
firearm use charges, and one of the firearm possession charges. In
evaluating the sufficiency of the evidence supporting a criminal
conviction on direct review, “the verdict of the jury must be
sustained if there is substantial evidence, taking the view most
favorable to the Government, to support it.” Glasser v. United
States, 315 U.S. 60, 80 (1942). Substantial evidence is evidence
“that a reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant’s guilt beyond a
reasonable doubt.” United States v. Burgos, 94 F.3d 849, 862 (4th
Cir. 1996) (en banc). This court considers circumstantial and
direct evidence, and allows the Government the benefit of all
reasonable inferences from the facts proven to those sought to be
established. Id. at 858; United States v. Tresvant, 677 F.2d 1018,
1021 (4th Cir. 1982).
Here, the Government presented evidence that supported
the jury’s determination that Campos knew the men invading the
trailer were police officers, rather than robbers. First, the
police knocked before entering the trailer, and announced their
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identity and presence both before and after entering the trailer,
actions robbers would not take. Because these announcements were
loud enough to have been heard by agents outside the trailer, it is
reasonable for the jury to have assumed they were heard by Campos
and his roommate. Moreover, while Campos’ knowledge of the English
language was quite limited, the Spanish word for “police,”
“policía,” sounds similar to its English counterpart,1 and was used
by police repeatedly as they entered the trailer. These were not
just words being used by the individuals that Campos overheard.
These were announcements, being made repeatedly and loudly to
announce the presence of the police. Also, the room in which
Campos was in was well-lit and he stood six feet away from Trooper
Chambers, who was in uniform, such that it is reasonable to
conclude that Campos had a clear view of Trooper Chambers before
Campos shot him. Although Campos had prior history with and
perhaps a well-supported fear of being a victim of another robbery,
the circumstances of this case simply do not support his claim that
he reasonably thought that those entering the trailer that night
were robbers, rather than police officers. We conclude on the
facts of this case, construed in the light most favorable to the
Government, that there was ample evidence for the jury to conclude
1
While the Government contends in its brief that Campos “spoke
clear English at one point during his testimony,” it provides no
citation for this testimony, and the record does not appear to
support this assertion.
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beyond a reasonable doubt that Campos knew those entering his
trailer were police officers, such that its verdict as to Counts 1,
3, and 4 was supported by the record, and the district court’s
denials of Campos’ Rule 29 motions for judgment of acquittal as to
those charges were proper.
Campos also asserts insufficiency of the evidence to support
the jury’s verdict as to Count 6, which alleged a violation of 26
U.S.C. § 5861(d) (possession of an unregistered firearm).
Specifically, he claims the Government failed in its attempt to
prove that Campos knew, based on the physical characteristics of
the firearm, that it was illegal, i.e., that the barrel of the
shotgun he was charged with possessing was less than eighteen
inches long.
We find Campos’ claim to be without merit because there
is evidence in this record, viewed in the light most favorable to
the Government, that would support the jury’s finding that Campos
knew that his sawed-off shotgun was illegal. First, while Campos
claimed he had no familiarity with guns, he admitted at trial that
he had handled the shotgun in question on several occasions,
testified that he had seen the gun a number of times prior to the
night of the incident, and referred to the sawed-off shotgun as the
“short one,” or the “shorter gun.” Further undercutting Campos’
claim that he knew nothing about guns was evidence that he fired
five rounds in approximately ten seconds in a shot pattern showing
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that he clearly was aiming at Trooper Chambers behind the wall,
followed by a direct shot hitting Trooper Chambers when the two men
were face-to-face. Finally, the Government presented evidence that
Campos’ residence held several guns, and that police found 168
rounds of various types of ammunition in the trailer.
We find this issue essentially to be based on
credibility. While the Government did not present direct evidence
to establish that Campos knew the gun’s length, it is apparent that
the jury found unbelievable Campos’ assertions that he was naive in
the matter of guns and did not know that the shotgun was sawed off
and under eighteen inches in length, in light of the other evidence
presented by the Government. Campos’ credibility is strictly a
matter for the jury and is not reviewable by this court on appeal.
United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002). We
therefore deny this claim.
Next, Campos claims error in the district court’s refusal
to instruct the jury on the defenses of justification and innocent
possession in regard to Counts 2 and 6, the two firearm possession
charges. Campos first asserts that the jury should have been
instructed on the defense of “justified possession,” or
justification defense because he “reasonably believed” that he was
under unlawful and present threat of death or serious bodily
injury. To establish a justification defense, the defendant must
show that: (1) he was under unlawful and present threat of death
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or serious bodily injury; (2) he did not recklessly place himself
in a situation where he could be forced to engage in criminal
conduct; (3) he had no reasonable legal alternative (to both the
criminal act and the avoidance of the threatened harm); and (4)
there was a direct causal relationship between the criminal action
and the avoidance of the threatened harm. United States v. Perrin,
45 F.3d 869, 873-74 (4th Cir. 1995).
We decline Campos’ suggestion to extend the availability
of the justification defense to cases where the defendant
“reasonably believes” he is under an “unlawful and present threat.”
The facts demonstrate that Campos was not under any actual present
or imminent threat of death or injury. Law enforcement officers
were there to serve lawful warrants on him, which they could have
done peaceably had he opened the door when they knocked and
announced their identity and purpose.
Campos also asserts that the district court erred in
refusing to give his requested instruction on innocent possession
with regard to Counts 2 and 6. The innocent possession defense
requires that the firearm be obtained innocently and held with no
illicit purpose, and that possession of the firearm be transitory,
that is, that “in light of the circumstances presented, there is a
good basis to find that the defendant took adequate measures to rid
himself of possession of the firearm as promptly as reasonably
possible.” United States v. Mason, 233 F.3d 619, 624 (D.C. Cir.
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2000). Here, Campos claimed he found the gun on February 3, 2003,
removed it from the back yard where he found it, and stored it in
the oven in an effort to keep children playing around the trailer
from finding it. However, unlike the defendant in Mason, Campos
demonstrated no intent to turn the gun over to lawful authorities.
He took no steps and exerted no effort to relinquish possession of
the gun. In addition, Campos’ own witness testified that Campos
had handled the illegal gun on various occasions prior to the
incident, contradicting Campos’ testimony that he had only
discovered the gun on February 3, 2003. He concealed the gun,
still loaded, together with additional ammunition, in the oven of
his trailer, where it was easily accessible to him, and where he
readily removed it and used it against the agents entering the
trailer. We find that the trial judge properly rejected Campos’
request for the instruction on innocent possession.
II. SENTENCE
In determining the applicable sentencing range under the
Sentencing Guidelines,2 the probation officer applied USSG § 2A2.1
to Count 4, the attempted murder charge, and through the cross-
reference in USSG § 2K2.1, the firearms guideline, also applied
§ 2A2.1 to Counts 2 and 6, the firearm possession charges. Section
2A2.1 contains two base offense levels, 28 and 22, depending on
2
U.S. Sentencing Guidelines Manual (2002) (“USSG”).
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whether the attempted murder, if completed, would have constituted
first-degree or second-degree murder. The probation officer
calculated the base offense level for Campos at 28. In addition,
the probation officer assessed a three-level enhancement pursuant
to USSG § 3A1.2 to Counts 1, 2, 4, and 6, the assault, attempted
murder, and firearms possession charges, on the basis that the
offenses involved an official victim. The district court overruled
Campos’ objections, applied the higher base offense level as well
as the three-point enhancement, and ultimately sentenced Campos by
applying the guidelines as a mandatory determinant in sentencing.
In so doing, the district court sentenced Campos based on
judicially-determined facts found by a preponderance of the
evidence, rather than facts found by the jury beyond a reasonable
doubt.3
The district court sentenced Campos to 151 months’
imprisonment on the assault and attempted murder counts, 120
months’ imprisonment on the two firearm possession counts, and 60
months on the two false document counts, all to run concurrently.
The district court also imposed the mandatory minimum sentence of
120 months’ imprisonment on Count 3, the use of a firearm in a
crime of violence, to run consecutively to the other counts. Thus,
the total term of imprisonment to which the district court
3
We note that the district court sentenced Campos fully in
accordance with the law and procedure in effect at the time of
Campos’ sentencing.
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sentenced Campos was 271 months. The district court also imposed
five years of supervised release, special assessments totaling
$700, and restitution in the amount of $14,735.61.
On appeal, Campos contends that the application of the
higher base offense level and the three-point enhancement, which
increased substantially his range of imprisonment under the
guidelines, constitutes plain error under the Supreme Court’s
decisions in Blakely v. Washington, 124 S. Ct. 2531 (2004), United
States v. Booker, 125 S. Ct. 738 (2005), and this court’s original
decision in United States v. Hughes, 396 F.3d 374 (4th Cir. 2005),4
because it was based upon facts not found by the jury beyond a
reasonable doubt.
In Booker, the Supreme Court applied the Blakely decision
to the federal sentencing guidelines and concluded that the Sixth
Amendment is violated when a district court imposes a sentence
under the Sentencing Guidelines that is greater than a sentence
based solely upon facts found by the jury. Booker, 125 S. Ct. at
752-56. The Court remedied the constitutional violation by
severing two statutory provisions, 18 U.S.C. § 3553(b)(1) (West
Supp. 2004) (requiring sentencing court to impose a sentence within
the applicable guideline range), and 18 U.S.C.A. § 3742(e) (West
2000 & Supp. 2004) (setting forth appellate standards of review for
4
Campos’ supplemental brief was filed with this court prior to
the issuance of our amended opinion, United States v. Hughes, 401
F.3d 540 (4th Cir. 2005).
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guideline issues), thereby making the guidelines advisory. United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005) (citing Booker,
125 S. Ct. at 756-57, 764 (Breyer, J., opinion of the Court)).
After Booker, courts must calculate the appropriate
guideline range, consider the range in conjunction with other
relevant factors under the guidelines and 18 U.S.C.A. § 3553(a),
and impose a sentence. If a court imposes a sentence outside the
guideline range, the district court must state its reasons for
doing so. Hughes, 401 F.3d at 546. This remedial scheme applies
to any sentence imposed under the mandatory sentencing guidelines,
regardless of whether or not the sentence violates the Sixth
Amendment. Id. at 547 (citing Booker, 125 S. Ct. at 769 (Breyer,
J., opinion of the Court)).
In this case, as in Hughes, the district court sentenced
Campos by applying the guidelines as a mandatory determinant in
sentencing and based upon facts not authorized by the jury’s
findings. In light of the change in the law, we conclude that the
district court erred in determining Campos’ sentence, that the
error was plain and affected Campos’ substantial rights, and that
we should exercise our discretion to notice the error. We
therefore vacate Campos’ sentence and remand for resentencing.
However, as we did in Hughes, we address the propriety of the
district court’s application of the guidelines, which, of course,
are now advisory.
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We first address Campos’ assertion of error in the
district court’s determination that the appropriate base offense
level under the attempted murder guideline was 28 rather than 22,
and his claim that the lower base offense level should apply
because his shooting of Trooper Chambers was not done with
premeditation and deliberation. We review the district court’s
factual findings at sentencing for clear error, and its
interpretation of a sentencing guideline de novo. United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).
Campos relies heavily on the fact that the events leading
up to the shooting occurred very quickly, noting the period of time
from Chambers’ entry through the front door until he retreated
after being shot by Campos lasted only about ten seconds. He
asserts that his actions were consistent with those of a frightened
and impulsive man, not of a calculating and deliberate criminal
mind.
We find no clear error by the district court in finding
that Campos acted with premeditation and deliberation in shooting
Trooper Chambers. Instead of opening his door to the police, who
were knocking and announcing their presence,5 Campos used what
5
Interestingly, Campos does not claim that he did not hear the
police knock or give their announcement. Rather, he asserts that
he did not comprehend it because he had only a limited ability to
understand English.
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little time he had6 to go to the kitchen and retrieve the loaded
sawed-off shotgun from the oven, despite the knowledge that there
was already another rifle in the room. Campos’ actions in leaving
the room he was in and retrieving the shotgun, together with the
fact that the evidence revealed unquestionably that he fired four
shots into a confined area where the troopers were located, in a
high pattern, and aimed toward the upper body and head, and fired
a fifth shot directly at uniformed Trooper Chambers from a distance
of approximately six feet, in a well-lit room, support the district
court’s conclusion that those shots were made deliberately and with
the intent to kill.
Campos further asserts that the district court erred when
it enhanced his offense level by three levels pursuant to USSG
§ 3A1.2, on the basis that the offenses involved an official
victim. The district court’s factual findings in applying USSG
§ 3A1.2 are reviewed for clear error. United States v. Zuragoza-
Fernandez, 217 F.3d 31, 32-33 (1st Cir. 2000). The district court
overruled Campos’ objection and applied the three-point “official
victim” enhancement based on its factual finding that Campos
understood that the men entering his trailer were police and
6
We previously have held that no particular period of time is
essential to a finding of premeditation and deliberation. Faust v.
North Carolina, 307 F.2d 869, 871 (4th Cir. 1962).
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nonetheless fired at them.7 We find no clear error in the district
court’s conclusion that Campos had reasonable cause to believe that
Trooper Chambers and the others were law enforcement officers,
based upon the uncontested facts that the agents arrived at the
trailer in multiple cars, knocked loudly on the door, and entered
while announcing repeatedly that they were police officers there to
serve a search warrant.
We find to be without merit Campos’ specific contention
that the district court erred in applying subsection (b) of USSG
§ 3A1.2 to Campos’ assault and attempted murder convictions (Counts
1 and 4), because Campos wounded Trooper Chambers during the course
of the offense, see, e.g., United States v. Farrow, 198 F.3d 179,
198 (6th Cir. 1999), and to the firearms convictions (Counts 2 and
6) because Campos used a firearm when he assaulted Trooper Chambers
in a manner creating a substantial risk of serious bodily injury.
United States v. Braxton, 903 F.2d 292, 299 (4th Cir. 1990), rev’d
on other grounds, 500 U.S. 344 (1991).
III. CONCLUSION
Accordingly, although we affirm Campos’ conviction, we
vacate his sentence and remand to the district court for
resentencing in accordance with Booker and Hughes. We dispense
7
While the district court did not specify on which subsection
of USSG § 3A1.2 the enhancement was based, the facts support
application of subsection (b), rather than (a).
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with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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