United States v. James S. Campbell

This is an appeal from a conviction for using a telephone to facilitate a conspiracy to distribute marijuana in violation of 21 U.S.C. § 843 (b). It presents the novel question of whether a sentencing court may properly consider a prior drug conviction under the Federal Youth Corrections Act (FYCA), 18 U.S.C. § 5005 et seq. Campbell contends that the parole and probation department’s reference in its presentence report to his prior FYCA conviction was improper. We do not agree.

Judges have broad discretion to consider a wide range of information in determining an appropriate sentence. United States v. Tucker, 404 U.S. 443, 446 , 92 S.Ct. 589, 591 , 30 L.Ed.2d 592 (1972); United States v. Williams, 668 F.2d 1064, 1072 (9th Cir.1981). We believe such information may include a prior conviction pursuant to the FYCA. In urging us to adopt a contrary position, Campbell relies on United States v. Fryer, 545 F.2d 11 (6th Cir.1976). This reliance is misplaced. The Fryer court held only that a prior FYCA conviction could not be used as the basis for a conviction pursuant to the firearms statute, 18 U.S.C. § 922 (a)(6), which requires as an essential element of the offense a prior felony…