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March 9, 2005

The plain error madness continues in the 4th Circuit

As detailed in this brief order, the panel of the Fourth Circuit that issued its broad plain error ruling in Hughes (background here) has granted the government's petition to rehear the case.  That would suggest, I think, that the Fourth Circuit's placement in the remarkable three-way circuit split on plain error (detailed here) is now back in play.  Here is the full text of the (unusual?) order:

Panel rehearing of this case is granted at the direction of the Court.  Entered for a panel composed of Chief Judge Wilkins, Judge Traxler, and Judge Gregory.

Ironically, when I first went to the Fourth Circuit's website to look for more information, I found an unpublished disposition in US v. Calloway, No. 03-4906 (4th Cir. Mar. 8, 2005) (available here), which vacates two defendants' sentences and remands "for proceedings consistent with Hughes."  A quick Westlaw search indicated that perhaps more than 10 cases have been remanded on the basis of Hughes.  I'm not sure what "panel rehearing" might mean for these cases or others in the Fourth Circuit pipeline, although I have been told that "the Fourth Circuit's rules (Internal Operating Procedure 40.2) state that if a panel rehearing is granted, the original judgment is vacated and the case will be reheard by the original panel."

In addition, and adding to what is becoming an almost comical story, now also appearing on the Fourth Circuit's website is US v. Gilchrist, No. 03-4379 (4th Cir. Mar. 8, 2005) (available here), where the Fourth Circuit responds to a defendant's petition for rehearing by stating "the panel is of the opinion that Gilchrist's sentences must be vacated and the case remanded for resentencing in light of United States v. Booker, 125 S. Ct. 738 (2005), which was decided after the panel opinion issued in this case."  Then, in a 12-page concurrence(?!?), Judge Luttig explains in detailed terms why he believes "that our decision in United States v. Hughes was fundamentally flawed."

Anyone with additional information or insights about these notable Fourth Circuit developments (or about the still pending rehearing petition in the Ameline case from the Ninth Circuit) are encouraged to report in the comments or via e-mail what they know.

March 9, 2005 at 03:20 PM | Permalink

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