Petition for Writ of Certiorari — Gerald Lynn Campbell, Petitioner v. United States

Supreme Court briefJul 19, 2025

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NO. ____________

IN THE UNITED STATES SUPREME COURT

______________________________________________________________________

GERALD CAMPBELL,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

______________________________________________________________________

PETITION APPENDIX

______________________________________________________________________

Erin P. Rust

Assistant Federal Defender

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

605 Chestnut Street, Suite 1310

Chattanooga, Tennessee 37450

(423) 756-4349

Attorney for Gerald Campbell

AO 245B (Rev. TNED 10/2019) Judgment in a Criminal Case

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TENNESSEE CHATTANOOGA DIVISION

UNITED STATES OF AMERICA

JUDGMENT IN A CRIMINAL CASE

Case Number: 1:21-CR-00005-CEA-SKL(1)

GERALD LYNN CAMPBELL

USM#14452-074

J Damon Burk

Defendant’s Attorney

THE DEFENDANT:

☒

pleaded guilty to count: One of the Indictment

☐

pleaded nolo contendere to count(s) which was accepted by the court.

☐

was found guilty on count(s) after a plea of not guilty.

ACCORDINGLY, the court has adjudicated that the defendant is guilty of the following offense:

Title & Section and Nature of Offense

18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(e):

Felon in Possession of a Firearm (Armed Career Criminal)

Date Violation Concluded Count

02/02/2021

The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is imposed pursuant to the Sentencing

Reform Act of 1984 and 18 U.S.C. § 3553.

☐ The defendant has been found not guilty on count(s).

☐ All remaining count(s) as to this defendant are dismissed upon motion of the United States.

IT IS ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any change of

name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid.

If ordered to pay restitution, the defendant shall notify the court and the United States attorney of any material change in the

defendant's economic circumstances.

June 30, 2022

Date of Imposition of Judgment

Signature of Judicial Officer

Charles E Atchley Jr., United States District Judge

Name & Title of Judicial Officer

July 5, 2022

Date

Pet. App'x 1a

Case 1:21-cr-00005-CEA-SKL Document 58 Filed 07/05/22 Page 1 of 7 PageID #: 380

AO 245B (Rev. TNED 10/2019) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

GERALD LYNN CAMPBELL

1:21-CR-00005-CEA-SKL(1)

Judgment - Page 2 of 7

IMPRISONMENT

The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of: 180 months

as to Count One of the Indictment. This sentence is to run concurrently to any sentence received in Hamilton County TN

Criminal Court Docket Number 312113.

☒ The court makes the following recommendations to the Bureau of Prisons:

The Court will recommend that the defendant receive 500 hours of substance abuse treatment from the Bureau of Prisons’

Institutional Residential Drug Abuse Treatment Program.

The Court will recommend that the defendant receive a mental health evaluation and any necessary treatment while in the

custody of the Bureau of Prisons.

☒ The defendant is remanded to the custody of the United States Marshal.

☐ The defendant shall surrender to the United States Marshal for this district:

☐ at

☐ a.m. ☐ p.m. on

☐ as notified by the United States

Marshal.

☐ The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

☐ before 2 p.m. on .

☐ as notified by the United States Marshal.

☐ as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on

with a certified copy of this judgment.

UNITED STATES MARSHAL

DEPUTY UNITED STATES MARSHAL

Pet. App'x 2a

Case 1:21-cr-00005-CEA-SKL Document 58 Filed 07/05/22 Page 2 of 7 PageID #: 381

AO 245B (Rev. TNED 10/2019) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

GERALD LYNN CAMPBELL

1:21-CR-00005-CEA-SKL(1)

Judgment - Page 3 of 7

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of five (5) years.

MANDATORY CONDITIONS

You must not commit another federal, state or local crime.

You must not unlawfully possess a controlled substance.

You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release

from imprisonment and at least two periodic drug tests thereafter, as determined by the court.

☐ The above drug testing condition is suspended, based on the court's determination that you pose a low risk of future

substance abuse. (check if applicable)

☐ You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentencing

of restitution. (check if applicable)

☒ You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)

☐

You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et

seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which

you reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)

You must participate in an approved program for domestic violence. (check if applicable)

You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the

attached page.

Pet. App'x 3a

Case 1:21-cr-00005-CEA-SKL Document 58 Filed 07/05/22 Page 3 of 7 PageID #: 382

AO 245B (Rev. TNED 10/2019) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

GERALD LYNN CAMPBELL

1:21-CR-00005-CEA-SKL(1)

Judgment - Page 4 of 7

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are

imposed because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed

by probation officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.

You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of

your release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a

different time frame.

2. After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how

and when you must report to the probation officer, and you must report to the probation officer as instructed.

3. You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission

from the court or the probation officer.

4. You must answer truthfully the questions asked by your probation officer.

5. You must live at a place approved by the probation officer. If you plan to change where you live or anything about your

living arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the

change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, you must notify the

probation officer within 72 hours of becoming aware of a change or expected change.

6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation

officer to take any items prohibited by the conditions of your supervision that he or she observes in plain view.

7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses

you from doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation

officer excuses you from doing so. If you plan to change where you work or anything about your work (such as your position

or your job responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the

probation officer at least 10 days in advance is not possible due to unanticipated circumstances, you must notify the probation

officer within 72 hours of becoming aware of a change or expected change.

8. You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has

been convicted of a felony, you must not knowingly communicate or interact with that person without first getting the

permission of the probation officer.

9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

10. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything

that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as

nunchakus or tasers).

11. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant

without first getting the permission of the court.

12. If the probation officer determines that you pose a risk to another person (including an organization), the probation officer

may require you to notify the person about the risk and you must comply with that instruction. The probation officer may

contact the person and confirm that you have notified the person about the risk.

13. You must follow the instructions of the probation officer related to the conditions of supervision.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the mandatory, standard, and any special conditions specified by the court and has

provided me with a written copy of this judgment containing these conditions. For further information regarding these conditions, see

Overview of Probation and Supervised Release Conditions, available at: www.uscourts.gov.

Defendant’s Signature

Date

Pet. App'x 4a

Case 1:21-cr-00005-CEA-SKL Document 58 Filed 07/05/22 Page 4 of 7 PageID #: 383

AO 245B (Rev. TNED 10/2019) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

GERALD LYNN CAMPBELL

1:21-CR-00005-CEA-SKL(1)

Judgment - Page 5 of 7

SPECIAL CONDITIONS OF SUPERVISION

The defendant shall participate in a program of testing and/or treatment for drug and/or alcohol abuse, as directed

by the probation officer, until such time as the defendant is released from the program by the probation officer.

The defendant shall participate in a program of mental health treatment, as directed by the probation officer, until

such time as the defendant is released from the program by the probation officer.

The defendant shall waive all rights to confidentiality regarding mental health and substance abuse treatment in

order to allow release of information to the supervising United States Probation Officer and to authorize open

communication between the probation officer and the treatment providers.

The defendant must submit his person, property, house, residence, vehicle, papers, [computers (as defined in Title

18 U.S.C. § 1030(e)(1), other electronic communications or data storage devices or media,] or office, to a search

conducted by a United States probation officer or designee. Failure to submit to a search may be grounds for

revocation of release. The defendant must warn any other occupants that the premises may be subject to searches

pursuant to this condition. An officer may conduct a search pursuant to this condition only when reasonable

suspicion exists that the defendant has violated a condition of his supervision and that the areas to be searched

contain evidence of this violation. Any search must be conducted at a reasonable time and in a reasonable manner.

Pet. App'x 5a

Case 1:21-cr-00005-CEA-SKL Document 58 Filed 07/05/22 Page 5 of 7 PageID #: 384

AO 245B (Rev. TNED 10/2019) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

GERALD LYNN CAMPBELL

1:21-CR-00005-CEA-SKL(1)

Judgment - Page 6 of 7

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the Schedule of Payments sheet of this judgment.

TOTALS

☐

Assessment

$100.00

Restitution

$.00

Fine

$.00

AVAA Assessment*

$.00

JVTA Assessment **

$.00

The determination of restitution is deferred until

An Amended Judgment in a Criminal Case (AO245C) will be entered

after such determination.

The defendant must make restitution (including community restitution) to the following payees in the amount listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified

otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal

victims must be paid before the United States is paid.

☐

Restitution amount ordered pursuant to plea agreement $

The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before

the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options under the Schedule

of Payments sheet of this judgment may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

☐

The court determined that the defendant does not have the ability to pay interest and it is ordered that:

☐ the interest requirement is waived for the

☐ fine

☐ restitution

☐ the interest requirement for the

☐ fine

☐ restitution is modified as follows:

* Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299.

** Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22.

*** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994,

but before April 23, 1996.

Pet. App'x 6a

Case 1:21-cr-00005-CEA-SKL Document 58 Filed 07/05/22 Page 6 of 7 PageID #: 385

AO 245B (Rev. TNED 10/2019) Judgment in a Criminal Case

DEFENDANT:

CASE NUMBER:

GERALD LYNN CAMPBELL

1:21-CR-00005-CEA-SKL(1)

Judgment - Page 7 of 7

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:

☒

☐

Lump sum payment of $100.00 due immediately, balance due

not later than

, or

in accordance with

☐

Payment to begin immediately (may be combined with

☐

Payment in equal

(e.g., weekly, monthly, quarterly) installments of $

over a period

(e.g., months or years), to commence

(e.g., 30 or 60 days) after the date of this judgment; or

☐

Payment in equal

(e.g., weekly, monthly, quarterly) installments of $

over a period

(e.g., months or years), to commence

(e.g., 30 or 60 days) after release from imprisonment to a term of

supervision; or

☐

Payment during the term of supervised release will commence within

(e.g., 30 or 60 days) after release from

imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or

☐

Special instructions regarding the payment of criminal monetary penalties:

☐

E, or

☐

F below; or

☐

D, or

☐

F below); or

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is

due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’

Inmate Financial Responsibility Program, are made to U.S. District Court, 900 Georgia Avenue, Joel W. Solomon Federal

Building, United States Courthouse, Chattanooga, TN, 37402. Payments shall be in the form of a check or a money order, made

payable to U.S. District Court, with a notation of the case number including defendant number.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

☐

Joint and Several

See above for Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint

and Several Amount, and corresponding payee, if appropriate.

☐ Defendant shall receive credit on his restitution obligation for recovery from other defendants who contributed to the same

loss that gave rise to defendant's restitution obligation.

The defendant shall pay the cost of prosecution.

The defendant shall pay the following court cost(s):

The defendant shall forfeit the defendant’s interest in the following property to the United States:

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) AVAA

assessment, (5) fine principal, (6) fine interest, (7) community restitution, (8) JVTA Assessment, (9) penalties, and (10) costs,

including cost of prosecution and court costs.

Pet. App'x 7a

Case 1:21-cr-00005-CEA-SKL Document 58 Filed 07/05/22 Page 7 of 7 PageID #: 386

Case: 22-5567

Document: 41-2

Filed: 08/10/2023

Page: 1

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0170p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

┐

│

GERALD LYNN CAMPBELL,

Defendant-Appellant.

│

┘

No. 22-5567

Appeal from the United States District Court

for the Eastern District of Tennessee at Chattanooga.

No. 1:21-cr-00005-1—Charles Edward Atchley, Jr., District Judge.

Decided and Filed: August 10, 2023

Before: GIBBONS, READLER, and DAVIS, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES OF EASTERN

TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED

STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.

_________________

OPINION

_________________

CHAD A. READLER, Circuit Judge. Gerald Lynn Campbell brandished a pistol and

told a group of laborers that he had a bullet for each of them. Following an indictment,

Campbell pleaded guilty to being a felon in possession of a firearm. The district court sentenced

him to fifteen years’ imprisonment, concluding that Campbell’s prior convictions for robbery

and drug offenses triggered the Armed Career Criminal Act’s mandatory minimum. Campbell

appealed, challenging his sentence. We affirm.

Pet. App'x 8a

(2 of 10)

Case: 22-5567

No. 22-5567

Document: 41-2

Filed: 08/10/2023

Page: 2

United States v. Campbell

(3 of 10)

Page 2

A group of construction workers were performing road repairs in Chattanooga,

Tennessee. Gerald Lynn Campbell approached the group in his vehicle. When he arrived, he

asked who had voted for Donald Trump in the recent presidential election. Seemingly unhappy

with the responses he received, Campbell brandished a firearm. He told the laborers that he “had

a bullet for each one of them.” Campbell then drove away, eventually parking his truck not far

from the construction site. When responding officers found the vehicle, they also discovered

Campbell sitting in his vehicle with a semi-automatic pistol in his lap.

A grand jury indicted Campbell for being a felon in possession of a firearm, in violation

of 18 U.S.C. § 922(g)(1). Campbell pleaded guilty. At the time of Campbell’s offense, being a

felon in possession of a firearm typically carried a maximum penalty of ten years’ imprisonment.

See 18 U.S.C. § 924(a)(2) (2021). The Armed Career Criminal Act, or ACCA, however,

mandates a 15-year minimum sentence for a defendant with “three previous convictions” for “a

violent felony or a serious drug offense,” each committed on “occasions different from another.”

18 U.S.C. § 924(e)(1). With respect to Campbell, the potential predicate offenses the district

court considered were: (1) an August 1985 Tennessee robbery; (2) an April 1987 Tennessee

aggravated assault; (3) an August 1992 Tennessee drug trafficking offense; (4) a December 1992

Virginia drug trafficking offense; and (5) a March 1993 Virginia drug trafficking offense.

Campbell objected on multiple grounds. Among them, he argued that Tennessee robbery

is not a predicate offense, that the drug offenses were not committed on different “occasions,”

and that the Fifth and Sixth Amendments require that the different-occasion issue be decided by

a jury. Campbell also challenged one of the Eastern District of Tennessee’s standard supervised

release conditions.

The condition states that if Campbell’s probation officer determined

Campbell posed a “risk” to another, the probation officer could require Campbell to notify the

person about the risk. E.D. Tenn. L.R. 83.10(c)(12). Campbell objected on the grounds that the

provision was unconstitutionally vague.

Pet. App'x 9a

Case: 22-5567

No. 22-5567

Document: 41-2

Filed: 08/10/2023

Page: 3

United States v. Campbell

(4 of 10)

Page 3

The district court overruled Campbell’s objections. It sentenced him to 180 months’

imprisonment, ACCA’s mandatory minimum, relying on the conviction for Tennessee robbery

and the three drug offenses as predicates. Campbell timely appealed.

II.

The Armed Career Criminal Act triggers an enhanced sentence for felonious

possession of a firearm when a criminal defendant has three or more prior “violent felony” or

“serious drug offense” convictions committed on different “occasions.” 18 U.S.C. § 924(e)(1).

Congress has defined “violent felony” for us. Under the statute’s “elements” clause, a violent

felony is a crime punishable by imprisonment for more than one year that “has as an element the

use, attempted use, or threatened use of physical force against the person of another.” Id.

§ 924(e)(2)(B)(i). We utilize the so-called categorical approach to determine whether an offense

satisfies that clause. United States v. Smith, 70 F.4th 348, 354 (6th Cir. 2023). Under that

approach, we ask whether the generic offense “necessarily” involves such force. See id. The

offense also must have a mens rea greater than recklessness. United States v. White, 58 F.4th

889, 895 (6th Cir. 2023) (citing Borden v. United States, 141 S. Ct. 1817, 1825 (2021)

(plurality)).

We review challenges to whether an offense is a violent felony and whether

offenses were committed on separate occasions de novo. United States v. Buie, 960 F.3d 767,

770 (6th Cir 2020); United States v. Southers, 866 F.3d 364, 369 (6th Cir. 2017).

Before the district court, the government’s position was that Campbell’s aggravated

assault conviction was categorically a violent felony, satisfying the ACCA predicate offense

requirements. The district court did not reach the issue, however, and the government does not

ask us to do so now. That leaves the robbery and drug offenses as potential predicate crimes.

1. We begin with Tennessee robbery. Tennessee defines “robbery” as “the intentional or

knowing theft of property from the person of another by violence or putting the person in fear.”

Tenn. Code Ann. § 39-13-401(a). We have repeatedly considered that offense categorically a

violent felony. That is so, we have explained, because Tennessee robbery requires the use or

threat of physical force with the requisite knowing or purposeful mens rea. United States v.

Pet. App'x 10a

Case: 22-5567

No. 22-5567

Document: 41-2

Filed: 08/10/2023

Page: 4

United States v. Campbell

(5 of 10)

Page 4

Mitchell, 743 F.3d 1054, 1060 (6th Cir. 2014); see also Southers, 866 F.3d at 367; United States

v. Belcher, 40 F.4th 430, 431 (6th Cir. 2022), cert. denied, 143 S. Ct. 606 (2023).

Campbell responds with two intervening Supreme Court decisions he says require a new

approach. According to Campbell, those cases—Elonis v. United States, 575 U.S. 723 (2015),

and Borden v. United States, 141 S. Ct. 1817 (2021)—instruct that ACCA’s definition of violent

felony excludes offenses that are triggered when a defendant threatens physical force

negligently. And, Campbell adds, Tennessee robbery sweeps in negligent threats of force, citing

State v. Witherspoon, 648 S.W.2d 279 (Tenn. Crim. App. 1983), and Sloan v. State, 491 S.W.2d

858 (Tenn. Crim. App. 1972). But here again, our precedent forecloses Campbell’s argument.

See Belcher, 40 F.4th at 432 (referencing Witherspoon, 648 S.W.2d at 281, and Sloan, 491

S.W.2d at 861). Throughout the “long history” of Tennessee’s robbery statute, “not once” has a

Tennessee court construed the fear element to encompass instances where a defendant

negligently caused the victim fear. Id. at 431–32; see also United States v. Hubbard, No. 216219, 2023 WL 319604, at *2 (6th Cir. Jan. 19, 2023).

Changing gears, Campbell argues that Tennessee robbery stretches beyond threats of

physical force and includes threatening to falsely accuse the victim of sodomy. Campbell hangs

his hat on a case that pre-dates the Civil War, Britt v. State, 26 Tenn. 45 (1846). This argument

too is a familiar one. See Hubbard, 2023 WL 319604, at *3. In an earlier case, we described

Britt as holding that “fear constituting an element of the crime is a fear of present personal peril

from violence offered or impending.” Id. (citing Britt, 26 Tenn. at 46). Although Britt mused

that robbery could include threatening to prosecute one for sodomy, no subsequent Tennessee

case appears to have ever picked up the proposition. See id.

2. Campbell next turns our attention to his drug offenses. He challenges the district

court’s conclusion that those offenses were committed on three separate “occasions,” making

them three ACCA predicate offenses. The occasions element springs from the statute’s text. See

18 U.S.C. § 924(e)(1) (offenses must be committed “on occasions different from one another”).

A multi-factor inquiry guides our analysis. United States v. Williams, 39 F.4th 342, 350 (6th Cir.

2022) (citing Wooden v. United States, 142 S. Ct. 1063, 1070–71 (2022)). Those factors include

the timing, the locations, the character, and the relationship of the offenses. Id. (citing Wooden,

Pet. App'x 11a

Case: 22-5567

No. 22-5567

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Filed: 08/10/2023

Page: 5

United States v. Campbell

(6 of 10)

Page 5

142 S. Ct. at 1071). Substantial time and distance gaps will generally indicate different offense

occasions. Wooden, 142 S. Ct. at 1071. On the other hand, offenses with a “common scheme”

are more likely to be the same occasion. Id. In many instances, however, our analysis can be

limited to inquiries like whether the offenses were committed a “day or more apart” or at

“significant” distances, factors that can singularly decide the question.

See id. (citations

omitted).

That is the case here. The offenses at issue are a Chattanooga drug trafficking offense in

August 1992, a Norfolk drug trafficking offense in December 1992, and another Norfolk drug

trafficking offense from March 1993. Months separate each of the offenses—far more than the

“day” of separation the Supreme Court used as a benchmark in Wooden. 142 S. Ct. at 1071; see

also Williams, 39 F.4th at 350 (robberies separated by “at least six days” were separate

occasions). And the first two offenses are both remote in time as well as in proximity too: eight

hundred miles as the bird flies separated the Tennessee offense from those in Virginia. See

Wooden, 142 S. Ct. at 1071.

Campbell characterizes the offenses as sharing a common “purpose” (trafficking drugs)

because the Tennessee federal court considered the Virginia drug trafficking offenses as

“relevant conduct” during Campbell’s sentencing. But the Guidelines’ relevant conduct differs

from Wooden’s § 924 “occasions” test. Compare U.S.S.G. § 1B1.3 cmt. n.5(b)(ii) (defining

relevant conduct to include “ongoing series of offenses”), with Wooden, 142 S. Ct. at 1069

(defining “occasion” as a single “event, occurrence, happening, or episode”); see also United

States v. Cogdill, No. 22-5603, 2023 WL 4030069, at *2 (6th Cir. June 15, 2023) (rejecting the

same argument). Campbell’s view—that all offenses with the purpose of “trafficking” drugs

occur on the same occasion—would seemingly obviate the statute’s text.

See 18 U.S.C.

§ 924(e)(1) (indicating that “three” “drug offense[s]” can be three ACCA predicates).

Campbell also invokes the rule of lenity, summoning Justice Gorsuch’s Wooden

concurrence.

In Justice Gorsuch’s view, when “reasonable minds could differ” regarding

whether offenses were committed on multiple occasions, the rule of lenity demands a judgment

in the defendant’s favor. Wooden, 142 S. Ct. at 1081 (Gorsuch, J., concurring). That view,

however, seemingly is not a universal one.

Cf. id. at 1075 (Kavanaugh, J., concurring)

Pet. App'x 12a

Case: 22-5567

No. 22-5567

Document: 41-2

Filed: 08/10/2023

Page: 6

United States v. Campbell

(7 of 10)

Page 6

(“[T]he rule of lenity rarely if ever comes into play.”); Biden v. Nebraska, No. 22-506, slip op. at

2 (U.S. June 30, 2023) (Barrett, J., concurring) (noting that the rule of lenity is not a “strongform” substantive canon). Either way, after considering offenses separated by months and two

with many miles between them, no reasonable minds here could diverge on the occasion

question. See Williams, 39 F.4th at 350 & n.4.

Lastly, Campbell argues that the Fifth and Sixth Amendments require that the

government charge the separateness of the ACCA predicates in an indictment and prove the

supporting facts to a jury. See Wooden, 142 S. Ct. at 1087 n.7 (Gorsuch, J., concurring) (noting

that a “constitutional question simmers”). The United States, we note, likewise “agrees that a

jury should find (or a defendant should admit) that ACCA predicates were committed on

occasions different from one another.” Yet as the government also points out, Campbell’s

argument is precluded by precedent. At present, in our circuit, a sentencing judge may decide

whether prior offenses were committed on different occasions. Williams, 39 F.4th at 351;

Belcher, 40 F.4th at 432; see also United States v. Cook, No. 22-5056, 2022 WL 4684595, at *2

(6th Cir. Oct. 3, 2022) (explaining that on this point “Wooden didn’t disrupt our prior caselaw”).

In any event, Campbell’s argument does not have much purchase here. After all, he admitted

that he committed the ACCA predicates on four different dates, each separated by months or

years. See Belcher, 40 F.4th at 432 (rejecting defendant’s similar argument in part because

defendant admitted that at least three of his prior offenses were separated by at least six years).

B.1. That leaves Campbell’s challenge to one of the Eastern District of Tennessee’s

standard supervised release conditions. We review the imposition of the condition for an abuse

of discretion. United States v. Widmer, 785 F.3d 200, 203 (6th Cir. 2015).

First, some history on the condition in question. District courts have discretion to impose

supervised release conditions pursuant to 18 U.S.C. § 3563(b)(22).

The United States

Sentencing Commission promulgates recommended “standard” conditions.

See U.S.S.G.

§ 5D1.3(c); 28 U.S.C. § 994(a)(2)(B). One is the risk notification condition, which has seen a

transformation. The Commission’s prior version stated that a probation officer could direct a

defendant to notify “third parties of risks that may be occasioned by the defendant’s criminal

record or personal history or characteristics.” See United States v. Thompson, 777 F.3d 368, 379

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(7th Cir. 2015). Finding “personal history” and “characteristics” impermissibly vague, a few

circuits (including ours) directed district courts to modify the condition. See id. at 379, 382;

United States v. Evans, 883 F.3d 1154, 1162–64 (9th Cir. 2018); United States v. Sexton, 719 F.

App’x 483, 484–85 (6th Cir. 2017) (per curiam). In response, the Commission updated the

language to the current text, which the Eastern District of Tennessee adopted. See U.S. Sent’g

Guidelines Manual supp. to app. C, amend. 803 (U.S. Sent’g Comm’n 2016); U.S.S.G.

§ 5D1.3(c)(12); E.D. Tenn. L.R. 83.10(c)(12).

The risk notification condition now instructs that if a probation officer determines that a

defendant poses “a risk” to “another person,” the probation officer may require the defendant to

notify the person about the risk, and the defendant “shall” comply. U.S.S.G. § 5D1.3(c)(12);

E.D. Tenn. L.R. 83.10(c)(12). This standard condition is not uncommon in the district courts.

See United States v. Cruz, 49 F.4th 646, 652–53 (1st Cir. 2022) (collecting cases). According to

Campbell, however, the new language is still impermissibly vague such that it violates the due

process clause. A prior panel of our Court has upheld the condition’s new language, albeit in an

unpublished opinion. See United States v. Marcum, No. 20-5280, 2021 WL 1038272, at *4 (6th

Cir. Jan. 20, 2021) (per curiam) (order). Other circuits have rejected similar challenges. See

Cruz, 49 F.4th at 653; United States v. Janis, 995 F.3d 647, 653 (8th Cir. 2021); United States v.

Gibson, 998 F.3d 415, 423–24 (9th Cir. 2021); United States v. Hull, 893 F.3d 1221, 1223 (10th

Cir. 2018). But see United States v. Boles, 914 F.3d 95, 111–12 (2d Cir. 2019) (holding that the

condition was impermissibly vague). We uphold the language again today.

True, as Campbell notes, the due process clause forbids vague supervised release

conditions. United States v. Shultz, 733 F.3d 616, 622 (6th Cir. 2013). At the same time, a

condition need not “spell out every one of its applications.” Id. Instead, it must “fix an

ascertainable standard of guilt.” Id. (cleaned up). That is the case here. The prior version of the

condition was fatally flawed because the district court provided no clarification regarding what

was meant by “risks,” “personal history,” or “characteristics.” Sexton, 719 F. App’x at 484–85.

But the latter two categories have been removed from the condition. See E.D. Tenn. L.R.

83.10(c)(12). And the district court clarified the scope of “risk” in the challenged condition; the

“risk” referred to Campbell’s “past criminal history”—a definition that clears the “ascertainable”

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bar. See Marcum, 2021 WL 1038272, at *4; see also Gibson, 998 F.3d at 423 (rejecting

vagueness challenge because “risk” was cabined to those posed by the “defendant’s criminal

record” (emphasis omitted)).

2. Campbell has one last salvo. He argues that the condition was an unconstitutional

delegation of judicial authority. Because Campbell did not object before the district court, we

review the issue for plain error. See Fed. R. Crim. P. 52(b). That requires Campbell to show (1)

error, (2) that was obvious or clear, (3) that affected his substantial rights, and (4) affected the

fairness, integrity, or public reputation of his judicial proceedings. United States v. Johns, 65

F.4th 891, 893 (6th Cir. 2023). He falters from the start.

Federal law affords probation officers extensive authority. See 18 U.S.C. § 3603; United

States v. Logins, 503 F. App’x 345, 349 (6th Cir. 2012). That authority, however, has its limits.

Article III draws a line in the sand: imposing punishment upon a defendant convicted of a crime,

a core judicial function, cannot be delegated. See Whitehead v. United States, 155 F.2d 460, 462

(6th Cir. 1946); United States v. Henderson, 29 F.4th 273, 276 (5th Cir. 2022); see also Ex Parte

United States, 242 U.S. 27, 41–42 (1916). Here the record indicates that the court reserved the

“ultimate authority” to determine the condition’s contours. See United States v. Thompson, 653

F.3d 688, 693 (8th Cir. 2011); Cruz, 49 F.4th at 654; Janis, 995 F.3d at 653; see also United

States v. Kidd, No. 12-5420, 2013 WL 870263, at *2 (6th Cir. Mar. 11, 2013) (per curiam)

(citation omitted).

In particular, the court explained that if there were “any questions or

concerns,” the court would “take [the issue] up” to “resolve” it. See Cruz, 49 F.4th at 654

(rejecting a delegation challenge to an identical condition); Janis, 995 F.3d at 653 (same);

Henderson, 29 F.4th at 276 (same). That was enough to satisfy any delegation concerns under

our precedent.

We affirm the district court’s judgment.

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RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0259p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

┐

│

GERALD LYNN CAMPBELL,

Defendant-Appellant.

│

┘

No. 22-5567

Appeal from the United States District Court

for the Eastern District of Tennessee at Chattanooga.

No. 1:21-cr-00005-1—Charles Edward Atchley, Jr., District Judge.

Decided and Filed: November 22, 2024

Before: GIBBONS, READLER, and DAVIS, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Dana C. Hansen Chavis, FEDERAL DEFENDER SERVICES OF EASTERN

TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED

STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.

READLER, J., delivered the amended opinion of the court in which GIBBONS and

DAVIS, JJ., joined. DAVIS, J. (pp. 13–16), delivered a separate concurring opinion.

_______________________

AMENDED OPINION

_______________________

CHAD A. READLER, Circuit Judge. Gerald Lynn Campbell brandished a pistol and

told a group of laborers that he had a bullet for each of them. Following an indictment,

Campbell pleaded guilty to being a felon in possession of a firearm. The district court sentenced

him to fifteen years’ imprisonment, concluding that Campbell’s prior convictions for robbery

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