Govt of VI v. Rivera

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
6-18-2003
Govt of VI v. Rivera
Precedential or Non-Precedential: Precedential
Docket No. 02-1457
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PRECEDENTIAL
Filed June 18, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1457
GOVERNMENT OF THE VIRGIN ISLANDS,
Appellant
v.
JAMEL RIVERA
On Appeal from the Appellate Division of the
District Court of the Virgin Islands,
Division of St. Thomas and St. John
D.C. Criminal No. 00-cr-00228
(Honorable Raymond L. Finch and
Honorable Thomas K. Moore, United States District
Judges,
and Honorable Edgar D. Ross, Territorial Court Judge)
Argued November 8, 2002
Before: SCIRICA, Chief Judge,* ALITO and RENDELL,
Circuit Judges
(Filed June 18, 2003)
* Judge Scirica began his term as Chief Judge on May 4, 2003.
2
MAUREEN PHELAN, ESQUIRE
(ARGUED)
JOEL H. FELD, ESQUIRE
Office of Attorney General
of Virgin Islands
Department of Justice
48B-50C Kronprindsens Gade
GERS Building, 2nd Floor
Charlotte Amalie, St. Thomas
U.S. Virgin Islands 00802
Attorneys for Appellant
STEPHEN A. BRUSCH, ESQUIRE
(ARGUED)
International Plaza, Suite 2G
P.O. Box 988
Charlotte Amalie, St. Thomas
U.S. Virgin Islands 00804
Attorney for Appellee
OPINION OF THE COURT
SCIRICA, Chief Judge.
The Appellate Division of the District Court of the Virgin
Islands remanded this criminal case for resentencing to the
Territorial Court of the Virgin Islands. The Government of
the Virgin Islands has appealed. At issue is whether we
have jurisdiction to hear the government’s appeal.
I
On May 22, 1997, a jury convicted Jamel R. Rivera of
assault in the first degree in violation of 14 V.I. Code Ann.
§ 295(1). The Territorial Court of the Virgin Islands
sentenced Rivera to eight years imprisonment with credit
for time served, followed by two years supervised probation.
Rivera appealed both his conviction and sentence to the
Appellate Division of the District Court of the Virgin
Islands. The Appellate Division affirmed the conviction, but
held the sentence was illegal because “the trial court could
3
not impose probation on [Rivera] without suspending all
but six months of his prison term or staying the execution
of his sentence.” Rivera v. Gov’t of the V.I., 42 V.I. 203, 211
(D.V.I. App. Div. 2000).1 The Appellate Division vacated
Rivera’s sentence and remanded to the Territorial Court for
resentencing.
On remand, the Territorial Court resentenced Rivera to “a
term of incarceration for a period of ten years, with credit
for time served prior to June 19, 1997, from May 22, 1997
to June 19, 1997.” Gov’t of the V.I. v. Rivera, No.
F416/1996, at 2 (Terr. Ct. Apr. 12, 2000) (amended
judgment and commitment order). The Territorial Court
also assessed seventy-five dollars in court costs, an amount
higher than that imposed by the original sentence.
Rivera again appealed. The Appellate Division held the
resentencing was barred by the Double Jeopardy Clause.
See North Carolina v. Pearce, 395 U.S. 711 (1969). The
Appellate Division vacated the amended judgment and
commitment order and remanded to the Territorial Court
for resentencing. Rivera v. Gov’t of the V.I., 183 F. Supp. 2d
770, 773 (D.V.I. App. Div. 2002).2
1. The Appellate Division relied on 5 V.I. Code Ann. § 3711(a) in holding
the “sentence [was] not legal, and cannot stand.” Rivera, 42 V.I. at 211.
Section 3711(a) provides, in part, “[u]pon entering a judgment of
conviction . . . not punishable by life imprisonment, . . . a territorial
court . . . may suspend the imposition or execution of sentence and
place the defendant on probation.” 5 V.I. Code Ann. § 3711(a). The
statute further provides “if the maximum punishment provided for such
offense is more than six months, . . . a territorial court . . . may impose
a sentence in excess of six months and provide that the defendant be
confined in a jail-type institution or a treatment institution for a period
not exceeding six months and that the execution of the remainder of the
sentence be suspended and the defendant placed on probation.” Id.
2. The Appellate Division held the Territorial Court order “seemingly” did
not “give Rivera [proper] credit for the time he has spent in prison
pending appeal and resentencing.” Rivera, 183 F. Supp. 2d at 772. The
Appellate Division also held “the Territorial Court cannot impose costs”—
the seventy-five dollars—“higher than those required at the time of
Rivera’s original sentencing”—twenty-five dollars. Id. at 773. The
Appellate Division directed these matters also should be corrected by the
Territorial Court.
4
The Government of the Virgin Islands now seeks review of
the Appellate Division’s judgment remanding for
resentencing.
II
Before we review the merits of an appeal, we must
determine whether we have jurisdiction. To do so here, we
must focus on the Virgin Islands court structure and the
territorial prosecutor’s authority.
A. The Virgin Islands Court Structure
The United States Constitution grants Congress the
authority to “make all needful Rules and Regulations
respecting the Territory or other Property belonging to the
United States.” U.S. Const. art. IV, § 3, cl. 2. Under this
constitutional authority, Congress enacted the Revised
Organic Act of the Virgin Islands. 48 U.S.C. §§ 1541 et seq.3
The Revised Organic Act is “the Virgin Islands’ equivalent of
a constitution,” Brow, 994 F.2d at 1032, and vests the
judicial power of the Virgin Islands in local courts
established by local law and in the District Court of the
Virgin Islands, 48 U.S.C. § 1611. In 1984, Congress made
significant amendments to the Revised Organic Act. See Act
of Oct. 5, 1984, Pub. L. No. 98-454, 98 Stat. 1732. These
amendments, along with certain more recent changes in
Virgin Islands law, have shaped the current court structure
in the Virgin Islands.
The Virgin Islands court structure consists of the
Territorial Court of the Virgin Islands, which has original
jurisdiction over local civil actions, local criminal actions,
and certain other matters, 4 V.I. Code Ann. § 76; 1993 V.I.
Sess. Laws 5890,4 and the District Court of the Virgin
3. “Congress enacted the first . . . Organic Act of the Virgin Islands in
1936. Because this Act was not comprehensive, Congress enacted the
Revised Organic Act of 1954 . . . , which operated to repeal the 1936
Act.” Brow v. Farrelly, 994 F.2d 1027, 1032 (3d Cir. 1993) (citations
omitted). Since 1954, the Revised Organic Act has been amended on
various occasions.
4. “The District Court of the Virgin Islands has . . . original federal
question and diversity jurisdiction . . . , and shares this jurisdiction
concurrently with the Territorial Court of the Virgin Islands.” Brow, 994
F.2d at 1034 (citations omitted).
5
Islands, which has “the jurisdiction of a District Court of
the United States,” as well as jurisdiction over certain other
matters, 48 U.S.C. § 1612.5 Appeals from the Territorial
Court are heard by the Appellate Division of the District
Court of the Virgin Islands. The Appellate Division
functions as an appellate tribunal for local matters until
such time as the Virgin Islands legislature creates a local
appellate court. See 48 U.S.C. § 1613a; 4 V.I. Code Ann. § 33.6
The United States Court of Appeals for the Third Circuit
has “jurisdiction of appeals from all final decisions” of the
District Court when the District Court acts as a trial court
and also in its capacity as the Appellate Division. 28 U.S.C.
§ 1291 (“The court[ ] of appeals . . . shall have jurisdiction
of appeals from all final decisions of . . . the District Court
of the Virgin Islands . . . .”); 48 U.S.C. § 1613a(c) (“The
United States Court of Appeals for the Third Circuit shall
have jurisdiction of appeals from all final decisions of the
district court on appeal from the courts established by local
law.”).
The Virgin Islands court structure, incorporating the
Appellate Division of the District Court as an appellate
tribunal for local law, reflects Congress’s intent to
encourage “the development of a local Virgin Islands
appellate structure with greater autonomy with respect to
issues of Virgin Islands law.” In re Alison, 837 F.2d 619,
622 (3d Cir. 1988). The Appellate Division “represents a
step” toward such an autonomous appellate structure. Id.At the same time, the Appellate Division is “not an insular
5. The District Court “retains concurrent jurisdiction with the Territorial
Court over criminal actions in which the local crimes charged are related
to federal crimes.” Callwood v. Enos, 230 F.3d 627, 631 (3d Cir. 2000)
(explaining 48 U.S.C. § 1612(c)).
6. Appeals to the Appellate Division are heard and determined by a panel
“consisting of three judges, of whom two shall constitute a quorum.” 48
U.S.C. § 1613a(b). The Chief Judge of the District Court is the presiding
judge of the Appellate Division and the other judges on a panel are
selected “from among the judges who are serving on, or are assigned to,
the District Court.” Id. One judge on the panel “may be a judge of a
court established by local law.” Id. Subject to certain restrictions, local
law prescribes the appellate jurisdiction of the Appellate Division. 48
U.S.C. § 1613a(a).
6
[local] appellate court,” but is “essentially a federal
creature.” BA Props. Inc. v. Gov’t of the V.I., 299 F.3d 207,
212 (3d Cir. 2002). Thus, in many contexts, we “treat[ ]
appeals from the Appellate Division of the District Court of
the Virgin Islands no differently than appeals taken from
any other federal district court.” Ortiz v. Dodge, 126 F.3d
545, 548 (3d Cir. 1997); see also BA Props., 299 F.3d at
212 (“We will . . . exercise plenary review over the Appellate
Division’s order, much as we would when reviewing a
district court . . . .”). It is within this context, where the
Government of the Virgin Islands appeals a judgment of the
Appellate Division of the District Court in a local criminal
action, that we consider our jurisdiction.
B. Prosecutorial Authority To Appeal
It is axiomatic that a prosecutor has “no right to appeal
an adverse criminal judgment unless expressly authorized
by statute to do so.” Arizona v. Manypenny, 451 U.S. 232,
245 (1981); see also United States v. Wilson, 420 U.S. 332,
336 (1975) (“This Court early held that the Government
could not take an appeal in a criminal case without express
statutory authority.”); Gov’t of the V.I. v. Christensen, 673
F.2d 713, 715 (3d Cir. 1982). Thus, a legislature must
“speak with a clear voice” in order to authorize a
prosecutorial appeal in a criminal action. Manypenny, 451
U.S. at 247; see also id. at 246 (“[T]he presumption [is] that
the prosecution lacks appellate authority absent express
legislative authorization to the contrary.”). Here, the
Government of the Virgin Islands asserts that its authority
to appeal is supplied by 48 U.S.C. § 1493(c). The statute
provides, “The prosecution in a territory . . . is authorized—
unless precluded by local law—to seek review or other
suitable relief in the appropriate . . . federal appellate court
. . . from . . . an adverse decision, judgment, or order of an
appellate court.” 48 U.S.C. § 1493(c). While 48 U.S.C.
§ 1493(c) appears to grant broad authority to the
Government of the Virgin Islands to pursue an appeal, it is
silent on whether an adverse decision, judgment, or order
of the Appellate Division must be final in order for the
government to perfect an appeal to this court.7 At issue is
7. The legislative history reflects that 48 U.S.C. § 1493(c) was enacted in
response to Territory of Guam v. Okada, 694 F.2d 565 (9th Cir. 1982),
7
whether finality is required for appeals under 48 U.S.C.
§ 1493(c).
1. The Finality Requirement
Generally, federal courts of appeals are limited to
reviewing final decisions, judgments, and orders. Under 28
U.S.C. § 1291, courts of appeals “have jurisdiction of
appeals from all final decisions of the district courts.” More
specifically, finality is required by 48 U.S.C. § 1613a(c),
which provides jurisdiction for this court over appeals from
the Appellate Division. 48 U.S.C. § 1613a(c) (“The United
States Court of Appeals for the Third Circuit shall have
jurisdiction of appeals from all final decisions of the district
court on appeal from the courts established by local law.”);
see also Ortiz, 126 F.3d at 547 (“Under 28 U.S.C. § 1291and 48 U.S.C. § 1613a(c), our jurisdiction is limited to ‘final
decisions’ from the District Court of the Virgin Islands.”).
Under this finality requirement, “a party is entitled to a
single appeal, to be deferred until final judgment has been
entered, in which claims of district court error at any stage
of the litigation may be ventilated.” Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 868 (1994). The
requirement “descends from the Judiciary Act of 1789
where the First Congress established the principle that only
final judgments and decrees of the federal district courts
may be reviewed on appeal.” Cunningham v. Hamilton
County, 527 U.S. 198, 203 (1999) (quotations omitted). It
serves “several salutary purposes,” including “promoting
efficient judicial administration” and avoiding “the
amended by 715 F.2d 1347 (9th Cir. 1983). 130 Cong. Rec. 23,792
(1984). Okada “held that the government of a territory[, namely Guam,]
may not appeal to a federal court in a criminal case from a ruling—even
that of [a district court sitting as] an appellate court—in the favor of the
defendant, in the absence of a federal statutory authorization.” Id.Because there was no federal statutory authorization at the time of the
decision, the Guam prosecutor could not appeal an adverse decision of
the Appellate Division of the District Court of Guam to the United States
Court of Appeals for the Ninth Circuit.
The legislative history of 48 U.S.C. § 1493(c) is silent on whether an
Appellate Division’s adverse decision must be final in order to be
appealable.
8
harassment and cost of a succession of separate appeals.”
Id. at 203-04 (quotations omitted).
We recognize that there are limited departures from the
finality requirement. For example, Congress may
“authorize[ ], through . . . statutory provisions, immediate
appeals . . . in certain classes of cases.” Johnson v. Jones,
515 U.S. 304, 310 (1995).8 But, “interlocutory appeals . . .
are the exception, not the rule.” Id. at 309.
One exception to the finality requirement is found in 18
U.S.C. § 3731. The statute authorizes prosecutorial appeals
in criminal actions.9 Parts of 18 U.S.C. § 3731 specifically
8. In addition to statutory departures from the finality requirement, the
collateral order doctrine is “a narrow exception to the normal application
of the final judgment rule.” Midland Asphalt Corp. v. United States, 489
U.S. 794, 798 (1989).
9. 18 U.S.C. § 3731 provides:
In a criminal case an appeal by the United States shall lie to a
court of appeals from a decision, judgment, or order of a district
court dismissing an indictment or information or granting a new
trial after verdict or judgment, as to any one or more counts, or any
part thereof, except that no appeal shall lie where the double
jeopardy clause of the United States Constitution prohibits further
prosecution.
An appeal by the United States shall lie to a court of appeals from
a decision or order of a district court suppressing or excluding
evidence or requiring the return of seized property in a criminal
proceeding, not made after the defendant has been put in jeopardy
and before the verdict or finding on an indictment or information, if
the United States attorney certifies to the district court that the
appeal is not taken for purpose of delay and that the evidence is a
substantial proof of a fact material in the proceeding.
An appeal by the United States shall lie to a court of appeals from
a decision or order, entered by a district court of the United States,
granting the release of a person charged with or convicted of an
offense, or denying a motion for revocation of, or modification of the
conditions of, a decision or order granting release.
. . . .
The provisions of this section shall be liberally construed to
effectuate its purposes.
9
provide for appeals of certain non-final orders, including
orders granting new trials and suppressing or excluding
evidence. Thus, courts have heard appeals of certain
interlocutory orders under this statute. See, e.g.,
Charleswell, 24 F.3d at 574 (“[O]ur jurisdiction over the
[prosecutor’s] appeal is not dependent on 28 U.S.C. § 1291.
Instead, we have jurisdiction . . . under 18 U.S.C. § 3731. . . .”). But, we have held that “18 U.S.C. § 3731 does not
authorize an appeal of a sentencing order.” Gov’t of the V.I.
v. Douglas, 812 F.2d 822, 829 (3d Cir. 1987). Thus, the
Government of the Virgin Islands concedes 18 U.S.C.
§ 3731 is not applicable here.10 Instead, the government
contends 48 U.S.C. § 1493(c) authorizes its appeal.
But unlike 18 U.S.C. § 3731, the text of 48 U.S.C.
§ 1493(c) does not expressly provide for appeals of non-final
orders.11 As noted, 48 U.S.C. § 1493(c) is silent on finality.
With no contrary authorization, we apply the general
finality rule. Moreover, there is a “presumption that the
prosecution lacks appellate authority absent express
legislative authorization.” Manypenny, 451 U.S. at 246.
Thus, absent Congressional authorization permitting the
Government of the Virgin Islands to appeal non-final orders
to this court, appeals under 48 U.S.C. § 1493(c) are limited
to final decisions, judgments, and orders.
2. Accord With Existing Jurisprudence
Requiring finality for appeals under 48 U.S.C. § 1493(c)
accords with the role of the Appellate Division within the
While the statute specifically refers to prosecutorial appeals “by the
United States,” we have held that it also “applies to appeals taken by the
Government of the Virgin Islands.” Gov’t of the V.I. v. Charleswell, 24
F.3d 571, 574 (3d Cir. 1994). Moreover, 18 U.S.C. § 3731 applies to
appeals from the District Court of the Virgin Islands sitting both as a
trial court and as an appellate court. Id. at 574-75.
10. We note that, aside from reiterating that 18 U.S.C. § 3731 does not
authorize appeals of sentencing orders, our discussion of the statute
takes no position on what types of non-final orders may be appealed
under it.
11. Nor does the legislative history of 48 U.S.C. § 1493(c) indicate non-
final orders may be appealed under the statute.
10
Virgin Islands court structure. As noted, we generally treat
appeals from the Appellate Division of the District Court of
the Virgin Islands the same as appeals from any other
federal district court. See Ortiz, 126 F.3d at 548 (“[W]ith
regard to the question of finality, we have treated appeals
from the Appellate Division of the District Court of the
Virgin Islands no differently than appeals taken from any
other federal district court.”). In order to maintain
consistency between appeals from the Appellate Division
and other federal district courts, an appeal from the
Appellate Division should either meet the finality
requirement or satisfy a generally applicable finality
exception. Allowing an exception to finality for appeals
under 48 U.S.C. § 1493(c) would treat appeals from the
Appellate Division differently than appeals from other
federal district courts.
Requiring finality also corresponds with another decision
of this court. Recently, in Government of the Virgin Islands
v. Marsham, we addressed a similar situation. 293 F.3d
114 (3d Cir. 2002). In Marsham, the defendant had
appealed to the Appellate Division his sentence and
restitution order imposed by the Territorial Court. The
Appellate Division affirmed the sentence, but “remanded
the case to the Territorial Court, ordering . . . that the
restitution order be vacated.” Id. at 116. The Government of
the Virgin Islands then appealed “the Appellate Division’s
vacatur of the restitution order” to this court. Id. In
addressing appellate jurisdiction over the government’s
appeal, we held the Appellate Division’s decision must be
final in order to be appealable. Id. at 117 (“The issue here
is whether the Appellate Division’s decision is a final
order.”).12
12. Notably, we did not specifically address 48 U.S.C. § 1493(c) in
Marsham. Moreover, in Marsham, we concluded there was a “final
[decision] for purposes of our appellate jurisdiction” because the
Appellate Division judgment “conclusively and finally determined the
issue of [the defendant’s] sentence and restitution, and sent the matter
back simply for a ministerial entry” to vacate the restitution order. 293
F.3d at 117. But as we discuss infra Section II.C, there is no final
decision here.
11
Moreover, the United States Court of Appeals for the
Ninth Circuit has read 48 U.S.C. § 1493(c) in conjunction
with 48 U.S.C. § 1424-3(c), an analog of 48 U.S.C.
§ 1613a(c) providing “jurisdiction of appeals from all final
decisions of the appellate division of the district court” of
Guam. 48 U.S.C. § 1424-3(c). Under 48 U.S.C. § 1493(c),
the territorial prosecutor in “Guam has the authority to
appeal to [the Ninth Circuit] from an adverse final decision
or order of the Guam Appellate Division.” Territory of Guam
v. Borja, 983 F.2d 914, 916 (9th Cir. 1992); see also
Territory of Guam v. Estrebor, 848 F.2d 1014, 1015 (9th Cir.
1988) (“48 U.S.C. § 1493(c), enacted after Okada,
authorizes the prosecution in a territory to seek review of
an adverse decision of an appellate court, and 48 U.S.C.
§ 1424-3(c) provides that this court has jurisdiction over
appeals from all final decisions of the appellate division of
the district court of Guam.”).
In sum, there is no statutory authorization that would
permit the prosecutor to appeal and to breach the
traditional finality requirement. We hold that the
Government of the Virgin Islands may only appeal final
decisions, judgments, or orders under 48 U.S.C. § 1493(c).13
C. No Final Decision
Our inquiry shifts to whether there is a final decision. A
final decision “ends the litigation on the merits and leaves
nothing . . . to do but execute the judgment.” Catlin v.
United States, 324 U.S. 229, 233 (1945). In a criminal case,
the sentence is the final judgment. Douglas, 812 F.2d at
831; see also Berman v. United States, 302 U.S. 211, 212
(1937) (“Final judgment in a criminal case means sentence.
The sentence is the judgment.”). Thus, generally, “[i]n a
criminal case . . . appellate review [is prohibited] until
conviction and imposition of sentence.” Flanagan v. United
States, 465 U.S. 259, 263 (1984).
The Government of the Virgin Islands has not contended
the Appellate Division judgment is final.14 This is
13. As noted, there are limited exceptions to the finality requirement, but
none applies here.
14. Instead, the government has argued that finality should not be
required under 48 U.S.C. § 1493(c).
12
understandable. The judgment neither ended the litigation
nor left only the execution of judgment. Instead, it vacated
the sentence and remanded to the Territorial Court. At this
time, Rivera is under no sentence. There is no final
judgment to provide us with appellate jurisdiction.
Our caselaw confirms this lack of finality. In Marsham,
we suggested that generally an order remanding for
resentencing is not final. 293 F.3d at 117.15 But, in
Marsham, we heard the appeal because “the Appellate
Division’s order conclusively and finally determined the
issue of [the defendant’s] sentence and restitution, and sent
the matter back simply for a ministerial entry” to vacate the
restitution order. Id. As noted, the Appellate Division here
has vacated the Territorial Court order and remanded for
resentencing, leaving Rivera’s sentence undetermined.
Because the remand requires a new sentencing judgment
by the Territorial Court, there is no final decision here.16
15. Similarly, we have found a lack of finality in other cases where the
Appellate Division remanded for further proceedings in the Territorial
Court. In Ortiz, the Appellate Division affirmed a Territorial Court
decision that a debtor was entitled to a homestead exemption in a
creditor’s action to collect. 126 F.3d at 545-47. But the Appellate
Division remanded for the Territorial Court to determine the exact extent
of the exemption, a calculation necessary to decide the remaining issues
in the case. We refused to hear the appeal because the Appellate
Division decision was not final. Id. at 545. In In re Alison, we found no
finality after the Appellate Division reversed a Territorial Court judgment
on standing grounds and remanded for the case to proceed in the
Territorial Court. 837 F.2d at 620.
16. As noted, the Appellate Division judgment could still be appealed to
this court if it satisfies an exception to the finality requirement. We do
not find any exception applicable here.
The collateral order doctrine is “a narrow exception to the normal
application of the final judgment rule.” Midland Asphalt, 489 U.S. at
798. Usually, the collateral order doctrine is invoked by the defendant,
but also occasionally by the government. See Carroll v. United States,
354 U.S. 394 (1957) (analyzing whether the government’s appeal could
be heard by applying the same underlying concepts of finality used to
determine if any order is final and examining whether the grant of a
suppression motion satisfied the collateral order doctrine). To be
appealable under the collateral order doctrine, an order “must
13
D. Other Considerations
In concluding its supplemental brief, the Government of
the Virgin Islands argues that finding no jurisdiction here
is problematic because it will never again be able to seek
our review of the Appellate Division’s ruling. The
government contends that, upon resentencing by the
Territorial Court, it will not have the authority to appeal the
new sentence and challenge alleged defects with the
resentencing before this court.17
But this is a matter for Congress or the Virgin Islands
legislature. That the Government of the Virgin Islands may
not be able to appeal from a future judgment in this case
is a consequence of a legislative decision restricting
government appeals of sentences. See Gov’t of the V.I. v.
Hamilton, 475 F.2d 529, 531 (3d Cir. 1973) (The conclusion
that this court was without jurisdiction to hear the
Government of the Virgin Islands’s appeal of a criminal
matter from the District Court serving as an appellate
tribunal was “reinforced by the fact that [at the time] under
. . . local law . . . the defendant alone ha[d] the right in a
criminal case to appeal to the District Court from a
judgment of the [local] court.”).
conclusively determine the disputed question, resolve an important issue
completely separate from the merits of the action, and be effectively
unreviewable on appeal from a final judgment.” Coopers & Lybrand v.
Livesay, 437 U.S. 463, 468 (1978). In the context of a criminal case, the
collateral order doctrine is used sparingly because of the need to
effectively and efficiently conclude criminal proceedings, without
piecemeal interruptions. See, e.g., Flanagan, 465 U.S. at 264-66.
Here, it is clear that, at the very least, the second prong is not
satisfied. In vacating Rivera’s sentence and remanding for resentencing,
the Appellate Division judgment does not “resolve an important issue
completely separate from the merits of the action.” Coopers & Lybrand,
437 U.S. at 468. Because of the fundamental importance of a sentence
to a criminal prosecution, the vacatur and remand reopens an issue
central to the merits of the action.
17. In its supplemental brief, the government states “no matter the
outcome at the resentencing hearing, the government cannot appeal it.
(18 U.S.C. § 3742(b) cannot be stretched to fit this case, and no other
statute would allow the government to appeal).”
14
III
For the reasons discussed, we lack appellate jurisdiction
and will dismiss this appeal.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit