United States v. Roger William Campbell II (9th Cir. September 2019)

Sentencing/Supervised Release – The sentencing court may impose a consecutive prison term following the revocation of concurrent supervised release terms.

Roger Campbell was convicted of 35 counts of fraud and sentenced to 35 concurrent 24 month sentences followed by 35 concurrent three-year terms of supervised release. After Campbell failed to abide by the conditions of his release, the court revoked his supervised release. The Guidelines recommended 3 to 9 months as a sentencing range under Chapter 7. Ultimately, however, the court imposed a sentence of 25 months based on five consecutive five-month terms to run concurrently with 30 concurrent one-day terms.

On appeal, Campbell argued that the district court erred by sentencing him above the 3 to 9 month term recommended under U.S.S.G. § 7B1.3, which itself is silent on consecutive and concurrent sentences. On the other hand, 18 U.S.C. § 3584(a) allows a court to impose consecutive or concurrent terms of imprisonment upon revoking a defendant’s supervised release. Campbell emphasized that, notwithstanding § 3584(a), the lack of language regarding consecutive sentences under § 7B1.3 foreclosed the court from imposing consecutive sentences upon revoking his supervised release.

First, Campbell invoked the “negative pregnant rule” from the Supreme Court’s opinion in Russello v. United States, in which SCOTUS held that Congress’s use of particular language in one section of a statute, while omitting that language in another section of the same statute, creates a presumption that Congress intentionally excluded that language from the latter section. Campbell also argued that the rule of lenity was implicated because the references to consecutive sentences in other parts of Chapter 7 created an ambiguity as to whether they were allowed under § 7B1.3.

The Court disagreed. Citing decisions in the 11th and 5th Circuit, the Court held that the lack of a policy statement in Chapter 7 addressing consecutive versus concurrent sentences did not negate the plain language of § 3584(a). Rather, the absence of language discussing concurrent or consecutive sentences under Chapter 7 of the Guidelines “results in reversion to the statutory provision,” which explicitly gives courts the discretion to choose between either kind of sentence when revoking a defendant’s supervised release.

Dubitante, Judge Berzon remarked that the end result of this case was “baffling,” in that Campbell’s consecutive terms of imprisonment for a single violation of his conditions of release resulted in a sentence longer than his initial term of concurrent sentences. Judge Berzon faulted the Guidelines for creating this situation and urged the U.S. Sentencing Commission to “resolve this anomaly.”

Appeal from the District of Arizona

Opinion by Rawlinson, joined by Watford and Berzon

Dubitante Opinion by Berzon

Click here to read the opinion.


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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