UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4247
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH J. CAMPBELL, a/k/a PI, a/k/a Pit,
Defendant - Appellant.
No. 06-4535
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
HORACE CAMPBELL, a/k/a Squeak, a/k/a Horry,
Defendant - Appellant.
Appeals from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:04-cr-01046-DCN-7; 2:04-cr-01046-DCN)
Submitted: May 9, 2007 Decided: June 4, 2007
Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Joseph Condon, Jr., North Charleston, South Carolina; John L.
Drennan, DRENNAN LAW FIRM, North Charleston, South Carolina, for
Appellants. Reginald I. Lloyd, United States Attorney, Robert H.
Bickerton, Assistant United States Attorney, Thomas E. Booth,
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Joseph Campbell and Horace Campbell were convicted by a
jury of participating in a cocaine trafficking conspiracy involving
fifty grams or more of crack cocaine and five kilograms or more of
cocaine, in violation of 21 U.S.C. § 846, and using a telephone to
facilitate the conspiracy, in violation of 21 U.S.C. § 843(b).
Horace was also convicted of conspiracy to use firearms in a drug
trafficking offense, in violation of 18 U.S.C. § 924(n), three
counts of possession with intent to distribute cocaine, in
violation of 21 U.S.C. § 924(c)(1), and being a convicted felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
Because Joseph had previously been convicted of two prior state
felony drug offenses, he was sentenced to a mandatory minimum
sentence of life in prison under 21 U.S.C. § 841(b)(1)(A) and
§ 846. Horace was also sentenced to an aggregate term of life in
prison. The Campbells timely appealed, and their appeals have been
consolidated in this court. We affirm.
The Campbells first challenge the district court’s denial
of motions to suppress information obtained from wiretaps. “Prior
to granting an order authorizing a wiretap, the issuing judge must
find, in addition to probable cause, that ‘normal investigative
procedures have been tried and have failed or reasonably appear to
be unlikely to succeed if tried or to be too dangerous.’” United
States v. Oriakhi, 57 F.3d 1290, 1298 (4th Cir. 1995) (quoting 18
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U.S.C. § 2518(3)(c)). We conclude this claim fails because the
relevant standard was met and the motions to suppress were properly
denied.
The Campbells also argue that the Government’s delay in
producing certain documents was a violation of Brady v. Maryland,
373 U.S. 83 (1963). The failure to disclose evidence favorable to
the accused violates due process “where the evidence is material
either to guilt or to punishment.” Brady, 373 U.S. at 87. However,
“no due process violation occurs as long as Brady material is
disclosed to a defendant in time for its effective use at trial.”
United States v. Smith Grading & Paving, Inc., 760 F.2d 527, 532
(4th Cir. 1985). We conclude this claim fails because the relevant
evidence was not material to either Horace or Joseph’s guilt or
punishment and, in any event, the material was disclosed in
sufficient time for its effective use at trial.
Next, the Campbells argue that the district court
violated the Due Process and Ex Post Facto Clauses when it
increased the maximum sentence on the basis of facts not charged in
the indictment or proven to a jury beyond a reasonable doubt
pursuant to the remedial holding in United States v. Booker, 543
U.S. 220, 244-71 (2005). We conclude this claim fails because
retroactively applying the remedial portion of Booker does not
violate the Due Process or Ex Post Facto Clause. See United
States v. Davenport, 445 F.3d 366, 369-70 (4th Cir. 2006).
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Joseph also argues that the district court inaccurately
instructed the jury with regard to the drug amounts attributable to
him. We conclude that the jury was properly instructed with regard
to its determination of the drug amounts attributable to Joseph.
Joseph next argues that the indictment and jury
instructions were insufficient because they did not require a
determination of the time frame that Joseph was actually involved
in the conspiracy in order to sentence him to a mandatory minimum
life sentence under 21 U.S.C. § 841(b)(1)(A) and § 846. We
conclude that the indictment and jury instructions were sufficient
in this case.
Additionally, Joseph claims that the jury was required to
determine that the two prior convictions were “felony drug
offenses” according to the holding in Booker and its related cases.
We conclude this claim fails because the district court could
properly make this determination. See Harris v. United States, 536
U.S. 545, 567-68 (2002); United States v. Groce, 398 F.3d 679, 682
n.2 (4th Cir. 2005).
Finally, while Joseph also argues that his two prior
state felony convictions should have been considered one offense,
we conclude this claim fails because the three month interval
between each offense was sufficient to establish that the two
offenses were separate for purposes of sentencing Joseph to a
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mandatory minimum life sentence. See United States v. Williams,
187 F.3d 429, 431 (4th Cir. 1999).
Based on the foregoing, we affirm the Appellants’
convictions and sentences. We dispense 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
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