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    United States v. Campbell, 10th Cir. (1997)

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    This document is an order from the United States Court of Appeals for the Tenth Circuit dismissing an appeal for lack of jurisdiction. Two defendants had appealed their sentences imposed by a magistrate judge for removing elk antlers from protected lands. The district court vacated the sentences and remanded for resentencing consistent with its order that the magistrate lacked authority to defer adjudication of guilt. The Tenth Circuit concludes that the district court's order remanding for resentencing is not a final appealable order, as resentencing will involve judicial discretion. As effective review can occur after resentencing, the order also does not meet the requirements for review under the collateral order doctrine. Therefore, the Tenth Circuit dismisses the appeal.

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    United States v. Campbell, 10th Cir. (1997)

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    This document is an order from the United States Court of Appeals for the Tenth Circuit dismissing an appeal for lack of jurisdiction. Two defendants had appealed their sentences imposed by a magistrate judge for removing elk antlers from protected lands. The district court vacated the sentences and remanded for resentencing consistent with its order that the magistrate lacked authority to defer adjudication of guilt. The Tenth Circuit concludes that the district court's order remanding for resentencing is not a final appealable order, as resentencing will involve judicial discretion. As effective review can occur after resentencing, the order also does not meet the requirements for review under the collateral order doctrine. Therefore, the Tenth Circuit dismisses the appeal.

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    Filed: 1997-12-04 Precedential Status: Non-Precedential Docket: 97-8009

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    This document is an order from the United States Court of Appeals for the Tenth Circuit dismissing an appeal for lack of jurisdiction. Two defendants had appealed their sentences imposed by a magistrate judge for removing elk antlers from protected lands. The district court vacated the sentences and remanded for resentencing consistent with its order that the magistrate lacked authority to defer adjudication of guilt. The Tenth Circuit concludes that the district court's order remanding for resentencing is not a final appealable order, as resentencing will involve judicial discretion. As effective review can occur after resentencing, the order also does not meet the requirements for review under the collateral order doctrine. Therefore, the Tenth Circuit dismisses the appeal.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    9 views5 pages

    United States v. Campbell, 10th Cir. (1997)

    Uploaded by

    Scribd Government Docs
    This document is an order from the United States Court of Appeals for the Tenth Circuit dismissing an appeal for lack of jurisdiction. Two defendants had appealed their sentences imposed by a magistrate judge for removing elk antlers from protected lands. The district court vacated the sentences and remanded for resentencing consistent with its order that the magistrate lacked authority to defer adjudication of guilt. The Tenth Circuit concludes that the district court's order remanding for resentencing is not a final appealable order, as resentencing will involve judicial discretion. As effective review can occur after resentencing, the order also does not meet the requirements for review under the collateral order doctrine. Therefore, the Tenth Circuit dismisses the appeal.

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    of 5

    F I L E D

    UNITED STATES COURT OF APPEALS


    TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    DEC 4 1997

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    STEPHEN L. CAMPBELL,

    No. 97-8009
    (D.C. No. 96-M-69)
    (D. Wyo.)

    Defendant-Appellant.
    and

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.

    No. 97-8010
    (D.C. No. 96-M-70)
    (D. Wyo.)

    JARED ZIERENBERG,
    Defendant-Appellant.

    ORDER AND JUDGMENT *


    Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.

    This order and judgment is not binding precedent, except under the doctrines of
    law of the case, res judicata, and collateral estoppel. The court generally disfavors the
    citation of orders and judgments; nevertheless, an order and judgment may be cited under
    the terms and conditions of 10th Cir. R. 36.3.
    *

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, the case is
    ordered submitted without oral argument.
    Defendants Stephen Campbell and Jared Zierenberg appeal the district
    courts order vacating sentences imposed by the magistrate judge for removing
    elk antlers from the National Elk Refuge and the Grand Teton National Park, in
    violation of 36 C.F.R. 2.1(a)(1)(i). We dismiss for lack of jurisdiction.
    Defendants pleaded guilty and the magistrate deferred adjudication of guilt
    for two years with the condition that defendants violate no laws for that period.
    The magistrate also fined each defendant $2,000, but suspended $1,513 of the
    fine. The government appealed to the district court, arguing the magistrate had no
    authority to defer adjudication of guilt and dismiss charges after successful
    completion of a probationary period. The district court agreed and vacated the
    judgments and remanded for entry of judgments consistent with its order.
    Defendants appeal from these district court rulings.
    Because an order remanding a case for further proceedings ordinarily is not
    a final appealable order, see Baca-Prieto v. Guigni, 95 F.3d 1006, 1008 (10th Cir.
    1996); United States v. Baxter, 19 F.3d 155, 156 (4th Cir. 1994), we ordered the
    parties to file jurisdictional memoranda. Both parties argue the order appealed is
    -2-

    a final appealable order. We conclude the district courts order remanding the
    case to the magistrate for entry of judgment consistent with its order is not a final
    appealable order. In a criminal case, the sentence is the judgment. Bradley v.
    United States, 410 U.S. 605, 609 (1973); United States v. Tsosie, 966 F.2d 1357,
    1359 (10th Cir. 1992). Vacating or setting aside a sentence is the same as
    ordering resentencing. United States v. Smith, 116 F.3d 857, 858 (10th Cir.),
    cert. denied 118 U.S. 256 (1997). By vacating the magistrates judgment and
    remanding for entry of judgment consistent with its order, the district court
    vacated the sentence and remanded for resentencing consistent with its order.
    When a defendants sentence is vacated on appeal and remanded,
    resentencing is de novo unless the reviewing court specifically limits expansion
    of resentencing beyond the sentencing error causing the reversal. Smith, 116 F.3d
    at 858; United States v. Webb, 98 F.3d 585, 587 (10th Cir. 1996), cert. denied 117
    S.Ct. 1097 (1997). Here, the district court did not specifically limit the
    magistrates discretion on resentencing. Cf. Webb, 98 F.3d at 587-88 (appellate
    mandate specifically ordered district court to resentence defendant within
    guideline range of 27-33 months). The district court required only that
    resentencing be consistent with its order which held the magistrate lacked
    authority to defer adjudication of guilt. A different sentence would be consistent
    with the order as long as the magistrate did not defer adjudication of guilt. On
    -3-

    resentencing, the magistrate will be free to resentence the defendants de novo.


    The action on remand is more than merely ministerial and involves exercise of
    considerable judicial discretion. Consequently, the order remanding the cases to
    the magistrate is not a final order. See In re Rex Montis Silver Co., 87 F.3d 435,
    438 (10th Cir. 1996); Baxter, 19 F.3d at 156. Cf. Gulf Refining Co. v. United
    States, 269 U.S. 125, 135-36 (1925).
    The government relies on United States v. Mendes, 912 F.2d 434 (10th Cir.
    1990), to argue resentencing on remand is limited to the sentencing error that
    caused reversal. We do not read Mendes as requiring that result. In Mendes,
    after conviction and sentence, defendant appealed his conviction but withdrew his
    notice of appeal. After the government obtained a writ of mandamus requiring
    resentencing under Fed. R. Crim. P. 35 to a mandatory minimum sentence,
    defendants appeal was limited to his sentence because he had waived his right to
    appeal the conviction by withdrawing his notice of appeal.
    Nor is the district courts order appealable under the collateral doctrine,
    which is construed narrowly in criminal cases. Exceptions to the final judgment
    rule in criminal cases are rare. Flanagan v. United States, 465 U.S. 259, 270
    (1984). To be appealable under the collateral doctrine, an order must (1)
    conclusively determine the disputed question, (2) resolve an important issue
    completely separate from the merits of the action, and (3) be effectively
    -4-

    reviewable on appeal from a final judgment. Utah ex rel. Dept. of Health v.


    Kennecott Corp., 14 F.3d 1489, 1492 (10th Cir. 1994) (quoting Coopers &
    Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). When denial of immediate
    review will not make effective review impossible by causing irretrievable loss of
    rights, collateral review is unavailable. Blondin v. Winner, 822 F.2d 969, 973
    (10th Cir. 1987). Here, denial of immediate review will not make effective
    review impossible. After resentencing by the magistrate, if defendants are
    dissatisfied with their new sentences, they can appeal the denial of deferred
    adjudication to the district court and after the district court enters final judgment,
    they can raise the issue in an appeal to this court. Neither defendants nor the
    government will suffer irretrievable loss of rights.
    The appeal is DISMISSED. The mandate shall issue forthwith.
    Entered for the Court
    Mary Beck Briscoe
    Circuit Judge

    -5-

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