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July 31, 2006

Intriguing split Tenth Circuit ruling on plea agreements and sentencing

The Tenth Circuit today in United States vs. Scott, No. 05-6082 (10th Cir. July 31, 2006) (available here) concludes that the government its the plea agreement by making arguments to the district judge in support of a sentencing after failing to object to the presentence report.  Judge Kelly dissents, and starts his opinion (which is longer than the majority opinion) with this paragraph:

The court holds that the government breached its plea agreement with Mr. Scott by discussing two sentencing enhancements after being specifically directed to do so by the district court.  The court reasons that because no new facts were developed after the plea, the government was precluded from arguing any additional positions in favor of enhancements.  Prop. Op. at 7. Because this reasoning is supported by neither the applicable law nor the record, I respectfully dissent.

Because Judge Kelly is the only "active" member of the panel (the judges in the majority are both on senior status), I would not be surprised to see this case get serious en banc consideration.

July 31, 2006 at 06:25 PM | Permalink

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Comments

Doug writes:

Because Judge Kelly is the only "active" member of the panel (the judges in the majority are both on senior status), I would not be surprised to see this case get serious en banc consideration.
Doug, can you explain this a bit more? I'm not familiar with the idea that the work of senior judges is more en-banc-worthy than the work of active judges. Is that a relevant issue for en banc review in your experience?

Posted by: Orin Kerr | Jul 31, 2006 10:44:06 PM

My thought, Orin, is that among the active judges who vote on any en banc petition, there is now likely one vote to go en banc and the rest are uncertain. Thus, as a matter of pure numbers, only 4 of the remaining 8 active judges on the 10th Circuit must want Scott to go en banc (50%). Had the majority been comprised of two active judges, then 4 of the remaining 6 active judges would have to want this case going en banc (66.6%).

Number crunching aside, it seem plausible (though not likely) that active judges might be concerned about two senior judges setting circuit precedent in a close case. But I doubt this is a big factor, especially in a fact-specific case like Scott.

Posted by: Doug B. | Aug 1, 2006 12:06:48 AM

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