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July 14, 2014

Fourth Circuit to reconsider en banc its Whiteside ruling concerning reconsideration of guideline errors in 2255

As noted in this prior post, titled "Fourth Circuit deepens (via dramatic split opinion) circuit split over fixing sentencing problems via 2255 motions," a split panel of the Fourth Circuit back in April allowed a federal inmate to use a 28 U.S.C. ยง 2255 motion to challenge a sentence that was based on the career offender enhancement under the United States Sentencing Guidelines when subsequent case law revealed the enhancement was inapplicable to him.  The ruling in Whiteside v. US, No. 13-7152 (4th Cir. Apr. 8, 2014) (available here), included both a spirited marority and dissenting opinion.   

Now, thanks to a helpful reader and this unpublished order, I have learned that the full Fourth Circuit has decided to rehear this matter en banc.  I am not to surprised by this news, though I am perhaps a bit disappointed that it does not seem as though the Fourth Circuit has invited amicus invovement at this stage.  As regular readers know, I think sentencing finality concerns raise distinct issues and I have written at length on this subject recently.  Perhaps I should be grateful that the Fourth Circuit has not solicited amicus briefs in Whiteside, as it is much easier and much more efficient for me to share some of my perspective at this stage just to linking to my series of recent prior posts about sentence finality here:

July 14, 2014 at 03:18 PM | Permalink

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