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August 9, 2004

Full Mooney en banc hearing

Post from Ron:
As reported by Jason Hernandez and Howard Bashman, the Eighth Circuit made it official today: they will decide Mooney en banc. Here is a link to the court's order.

Doug commented earlier on the players involved in the Mooney case, and pointed out the opinion's cryptic statements about waiver and severability. It will now be interesting to see whether and how the passage of a few weeks or months — and very eventful weeks and months in every circuit — will sharpen the Eighth Circuit's analysis.

Addition from Doug:
Though the order to take Mooney en banc vacates the decision by (two members of) the Mooney panel declaring the guidelines unconstitutional and (generally?) non-severable, I do not believe the Eighth Circuit has (yet) voted to consider en banc the "companion" decision of US v. Pirani (details here).

Thus, technically speaking, there is still precedent in the Eighth Circuit holding that at least portions of the federal sentencing guidelines are unconstitutional. Perhaps Pirani will soon be taken en banc as well, or perhaps district courts in the Eighth Circuit can still march to their own beat as did Judge Bataillon in US v. Swan, 2004 U.S. Dist. LEXIS 14883 (D. Neb. Aug. 2, 2004) (details here). Whatever the case, following the bouncing precedent in the Eighth Circuit remains quite a task.

P.S.: Ron's post title got me thinking that perhaps the Eighth Circuit is just suffering from Full Moon(ey) Fever, and I noticed that the great Tom Petty album Full Moon Fever has more than a few song titles that could reasonably be used to describe various aspects of the post-Blakely world.

August 9, 2004 at 06:39 PM | Permalink


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Perhaps Pirani will soon be taken en banc as well

Posted by: Robe de Soirée 2013 | Dec 14, 2012 1:53:51 AM

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