and 01-3132 UNITED STATES OF AMERICA v. Rashaan Ahmed Campbell

NOT PRECEDENTIAL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

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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

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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.

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TO THE CLERK:
Please file the foregoing not precedential opinion.
/s/ Walter K. Stapleton
Circuit Judge

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