                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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                                                           NOT PRECEDENTIAL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



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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

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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




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