United States v. Desmond C. Lawrence ( 2000 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4438
DESMOND CHARLES LAWRENCE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-96-449-DWS)
Argued: October 29, 1999
Decided: January 14, 2000
Before WIDENER and MURNAGHAN, Circuit Judges, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.
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Dismissed by published opinion. Judge Widener wrote the opinion, in
which Judge Murnaghan and Senior Judge Michael joined.
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COUNSEL
ARGUED: Allen Bethea Burnside, Assistant Federal Public
Defender, Columbia, South Carolina, for Appellant. John Michael
Barton, Assistant United States Attorney, Columbia, South Carolina,
for Appellee. ON BRIEF: J. Rene Josey, United States Attorney,
Columbia, South Carolina, for Appellee.
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OPINION
WIDENER, Circuit Judge:
This appeal is from the district court's order directing that Des-
mond Charles Lawrence, the defendant, be resentenced using closed
circuit television technology.* The district court entered its order fol-
lowing our remand of the case for resentencing in United States v.
Lawrence, 161 F.3d 250, 256 (4th Cir. 1998). The district court based
its order on its assessment of the danger posed by transporting the
defendant from the United States Penitentiary in Florence, Colorado
to the district court in South Carolina. We dismiss the appeal as pre-
mature.
After a jury trial, the district court convicted and sentenced the
defendant for attempted robbery and bank larceny in early 1997.
Defendant appealed to this court in February 1997 challenging his
conviction and sentence. We affirmed his conviction and remanded
the case back to the district court for resentencing in accordance with
our opinion, United States v. Lawrence, 161 F.3d 250 (4th Cir. 1998).
On June 3, 1999 the district court ordered that the defendant's resen-
tencing be conducted via closed circuit television technology, and the
defendant appealed from that order. The district court stayed the
resentencing pending the outcome of this interlocutory appeal.
The basic rule of 28 U.S.C. § 1291 is that finality of a judgment
is a predicate for federal appellate jurisdiction. 28 U.S.C. § 1291 (stat-
ing that appellate review may be had for "all final decisions of the dis-
trict courts."). Piecemeal or interlocutory appeals are disfavored in the
federal courts, especially in criminal cases. See United States v.
MacDonald, 435 U.S. 850, 853-54 (1978) (holding that courts of
appeal have no jurisdiction for an appeal on Sixth Amendment speedy
trial grounds) (quoting Abney v. United States , 431 U.S. 651, 656
(1977) (holding that the collateral order doctrine permits interlocutory
appeal of an order denying a pretrial motion to dismiss an indictment
_________________________________________________________________
*The government tells us that this technology requires that the defen-
dant remain in Florence, Colorado for the resentencing hearing while the
judge and other parties remain in South Carolina and that the video and
audio equipment should allow the parties to communicate with each
other simultaneously.
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on double jeopardy grounds)). The exception to 28 U.S.C. § 1291 is
the collateral order doctrine announced in Cohen v. Beneficial Indus-
trial Loan Corp., 337 U.S. 541 (1949). That doctrine allows appellate
jurisdiction for an interlocutory appeal of an order made during the
course of litigation that is "related to matters outside the stream of the
main action and would not be subject to effective review as part of
the final judgment in the action." Parr v. United States, 351 U.S. 513,
519 (1956) (analyzing cases that fall within the exception to the final-
ity of judgment rule). The decisions falling under the collateral order
doctrine are final decisions in a sense because they"fall in that small
class which finally determine claims of right separable from, and col-
lateral to, rights asserted in the action," and which, if forced to await
review until final judgment, will be lost. Cohen , 337 U.S. at 546.
Lawrence claims jurisdiction for this interlocutory appeal under the
collateral order Cohen exception. Previously, we have recognized that
the Court applies "the requirements of the collateral order exception
to the final judgment rule . . . ``with the utmost strictness in criminal
cases.'" United States v. Blackwell, 900 F.2d 742, 747 (4th Cir. 1990)
(quoting Flanagan v. United States, 465 U.S. 259, 265 (1984)). While
the collateral order doctrine may have limited application in criminal
cases, see Helstoski v. Meanor, 442 U.S. 500 (1979) (a denial of a
Speech and Debate claim); Abney v. United States , 431 U.S. 651(1977) (denial of double jeopardy claim); Stack v. Boyle, 342 U.S. 1(1951) (an order denying a motion to reduce bail), the defendant
asserts no rights that would be irrevocably lost if he awaits final judg-
ment.
In addition, further analysis under the collateral order doctrine is
unnecessary because of the rule that "[f]inal judgment in a criminal
case means sentence. The sentence is the judgment." Berman v.
United States, 302 U.S. 211, 212 (1937); see also United States v.
Baxter, 19 F.3d 155, 156 (4th Cir. 1994).
Because Lawrence has not been sentenced, we do not have juris-
diction to consider the merits of this appeal and we express no opin-
ion thereupon.
The appeal in this case is accordingly
DISMISSED.
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