United States v. Campbell , 40 F. App'x 663 ( 2002 )


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  •                                                                                                                            Opinions of the United
    2002 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    7-9-2002
    USA v. Campbell
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 01-1510
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    Recommended Citation
    "USA v. Campbell" (2002). 2002 Decisions. Paper 382.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2002/382
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    NOS. 01-1510 and 01-3132
    UNITED STATES OF AMERICA
    v.
    RASHAAN AHMED CAMPBELL
    Appellant
    On Appeal From the United States District Court
    For the Western District of Pennsylvania
    (D.C. Crim. Action No. 00-cr-00036)
    District Judge: Honorable William L. Standish
    Argued May 2, 2002
    BEFORE: ROTH and STAPLETON, Circuit Judges, and POLLAK,* District Judge
    (Opinion Filed July 8, 2002)
    Lisa B. Freeland (Argued)
    Office of Federal Public Defender
    1001 Liberty Avenue
    1450 Liberty Center
    Pittsburgh, PA 15222
    Attorney for Appellant
    _____________________________________________________________________
    ___
    *Honorable Louis H. Pollak, United States District Judge for the Eastern District of
    Pennsylvania, sitting by designation.
    Bonnie R. Schlueter
    Constance M. Bowden (Argued)
    Office of the United States Attorney
    633 United States Post Office & Courthouse
    Pittsburgh, PA 15219
    Attorneys for Appellee
    OPINION OF THE COURT
    STAPLETON, Circuit Judge:
    Appellant Rashaan Ahmed Campbell pled guilty to a single count of bank
    robbery and was sentenced to 41 months of imprisonment and three years of supervised
    release. In the course of the sentencing proceedings, Campbell challenged the probation
    officer’s assessment of a criminal history point based on a July 1997 juvenile adjudication
    with respect to which Campbell denies being represented by counsel. Based on a finding by
    the District Court that he had counsel, Campbell was assigned a criminal history score of
    two, which yielded a range of 41 to 51 months. Campbell filed a timely appeal in which he
    argued that his criminal history score constituted reversible error. See Criminal Appeal
    No. 01-1510.
    While Campbell’s appeal was pending, the government filed a Rule 35(b)
    motion in the District Court proposing a reduction in the sentence based on Campbell’s
    cooperation. The parties secured an order from the District Court certifying its intention
    to grant the government’s motion and then jointly applied to this Court for a remand to
    2
    permit resentencing. This Court responded by ordering a “summary remand” to the District
    Court to permit it to act upon the government’s Rule 35(b) motion.
    On remand, the District Court was asked to resolve three issues: (1) the
    extent of the requested departure for cooperation; (2) whether the Court could revisit the
    issue of whether Campbell was represented by counsel in the juvenile proceeding
    occasioning the original assessment of a history point; and (3) if so, whether the Court had
    erred in assessing that history point. In support of his position that he had not been
    represented, Campbell submitted a transcript of a hearing in the juvenile proceeding that the
    Court had not considered during the earlier sentencing proceedings.
    The District Court ultimately concluded that it had no jurisdiction to revisit
    the criminal history point issue. It made clear on the record, however, that it would not
    have assessed the additional criminal history point if it had had the benefit of the transcript
    at the original sentencing. The Court then entered an order on July 25, 2001, granting the
    government’s Rule 35(b) motion and reducing Campbell’s sentence of imprisonment to
    time served. The sentence remained the same in all other respects.
    Campbell filed a notice of appeal contending that the District Court erred in
    concluding that it had no jurisdiction to revisit the criminal history point issue. He asks
    that we remand this case to the District Court “so that it can give effect to its previously
    stated conclusion” that it made a mistake. Campbell stresses that while he was resentenced
    to time served, the Presentence Report and the record of the original sentencing
    proceeding contain inaccurate information and findings that may have collateral
    3
    consequences for him.
    We agree with the District Court that it had no jurisdiction to revisit the
    criminal history point issue. After the filing of the original notice of appeal, this Court
    assumed exclusive jurisdiction over the subject matter of the appeal, Griggs v. Provident
    Consumer Discount Co., 
    459 U.S. 56
    (1982), and the District Court lost jurisdiction to
    consider a Rule 35 motion. United States v. Batka, 
    916 F.2d 118
    (3d Cir. 1990). It was for
    that reason that the parties followed the procedure suggested in the Batka decision and
    sought a summary remand to the District Court to permit disposition of the government’s
    motion. That remand was for a specific purpose, and it did not confer jurisdiction on the
    District Court to take any action other than action on the Rule 35 motion based on
    Campbell’s cooperation.
    This does not end the matter, however. It seems to us that a summary remand
    for a specific purpose prior to a determination of the issues presented in an appeal does not
    deprive this Court of jurisdiction to consider, after the conclusion of the remand
    proceedings in the District Court, any such issues not resolved or mooted by the District
    Court’s action on remand. While our consideration of the history point issue may come as
    a matter of record keeping in the context of Criminal Appeal No. 01-1510 rather than this
    appeal, we should not allow form to triumph over substance and will resolve the
    administrative issue by consolidating the two appeals.
    The government’s brief acknowledges that the criminal history point issue is
    not moot, noting that Campbell is currently serving a three year term of supervised release
    4
    and that his criminal history score would impact upon the sentence to be imposed upon any
    revocation of supervised release. Campbell points to no other issue raised in his original
    appeal that has not been mooted by his new sentence.
    Given the District Court’s express desire to correct what it currently
    perceives to be a mistake of fact based on additional evidence, we conclude that the
    appropriate course for us to take with respect to the criminal history point issue is to
    remand this case to it so that it may consider Campbell’s application for a correction of its
    Guidelines calculation.
    The judgment of sentence entered by the District Court on July 25, 2001,
    will be affirmed, the judgment entered by it on February 16, 2001, will be vacated, and this
    matter will be remanded for further proceedings consistent with this opinion.
    5
    TO THE CLERK:
    Please file the foregoing not precedential opinion.
    /s/ Walter K. Stapleton
    Circuit Judge
    6
    

Document Info

Docket Number: 01-1510

Citation Numbers: 40 F. App'x 663

Filed Date: 7/9/2002

Precedential Status: Non-Precedential

Modified Date: 1/12/2023