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United States v. Campbell

United States District Court, D. Arizona

November 21, 2017

United States of America, Plaintiff/Appellee,
v.
Dawn Lita Campbell, Defendant/Appellant.

          ORDER

          Cindy K. Jorgenson, United States District Judge.

         Pending before the Court is the appeal from the judgment of conviction for the misdemeanor conviction for Aiding and Abetting Aliens to Elude Examination and Inspection by Immigration Officers submitted by Dawn Lita Campbell (“Campbell”). The Court declines to schedule this matter for oral argument.

         Factual and Procedural Background

         On August 12, 2016, Campbell was arrested for Conspiracy to Transport Illegal Aliens for Profit. Following negotiations between former counsel and the government, an Information for the Class B Petty Offense of Aiding and Abetting Aliens to Elude Examination and Inspection by Immigration Officers. a misdemeanor, was filed against Campbell (4:16-mj-03179-JR, Doc. 25).

         Pursuant to an agreement between the parties, the felony Complaint would be dismissed in exchange for Campbell's plea to the misdemeanor charge in the Information of Aiding and Abetting Aliens to Elude Examination and Inspection by Immigration Officers. Further, the agreement provided that Campbell waived her right to any appeal of the court's entry of judgment against Campbell, the sentence imposed, or any right to collaterally attack the Campbell's conviction. Campbell pleaded guilty pursuant to the plea agreement on August 31, 2016 (4:16-mj-03179-JR, Docs. 26 and 27). At that time, a Stipulation and Joint Motion for Release of Material Witnesses without Taking Video Deposition (4:16-mj-03179-JR, Doc. 28). The United States Marshal was ordered to release the material witnesses to the Department of Homeland Security for return to their country of origin.

         Defense counsel moved to withdraw (4:16-mj-03179-JR, Doc. 55). During the July 10, 2017, hearing on that request, the magistrate judge was informed that Campbell sought to withdraw her plea of guilty. The magistrate judge granted the motion for counsel to withdraw and set the matter for sentencing and/or a status conference regarding a motion to withdraw plea.

         At the August 14, 2017 sentencing/status conference, new counsel orally moved for Campbell to withdraw from the plea agreement. The magistrate judge denied the request and sentenced Campbell; a 90 day sentence of imprisonment was imposed.[1] The magistrate judge stayed the date Campbell was to report to serve her sentence pending the outcome of this appeal.

         Campbell appeals the magistrate judge's denial of her motion to withdraw from the plea agreement.

         Jurisdiction

         This Court has appellate jurisdiction of the magistrate judge's entry of the judgment of conviction and sentence. See, 18 U.S.C. § 3402 (“In all cases of conviction by a United States magistrate judge an appeal of right shall lie from the judgment of the magistrate judge to a judge of the district court of the district in which the offense was committed”); Fed.R.Crim.P. 58(g).

         Standard of Review

         "The scope of the appeal is the same as in an appeal to the court of appeals from a judgment entered by a district judge." Fed. R. Crim. P. 58(g)(2)(D). Indeed, an appellant/defendant is “not entitled to a trial de novo be a district judge.” Id.

         Waiver of Right to Appeal

         Campbell argues that she did voluntarily waive her right to appeal. Specifically, she asserts that the seven factors discussed by the Sixth Circuit support a finding Campbell did not voluntarily waive her right to appeal the request to withdraw her guilty plea. See UnitedStates v. Haygood, 549 F.3d 1049 (6th Cir. 2008); United States v. Toth, 668 F.3d 374 (6th Cir. 2012). However, the Ninth ...


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