United States v. Campbell ( 1997 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 4 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-8009
(D.C. No. 96-M-69)
STEPHEN L. CAMPBELL, (D. Wyo.)
Defendant-Appellant.
and
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-8010
(D.C. No. 96-M-70)
JARED ZIERENBERG, (D. Wyo.)
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This order and judgment is not binding precedent, except under the doctrines of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
court’s 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
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a final appealable order. We conclude the district court’s 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 magistrate’s 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 defendant’s 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
magistrate’s 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
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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,
defendant’s 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 court’s 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
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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
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