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December 7, 2006

Laughing all the way to the (en) banc after Booker

In a very long post here (his longest ever?), Howard Bashman gives his view on the Eighth Circuit's distinctive procedural handling of the crack sentencing case Spears (discussed here and here).  Howard sensibly speculates about how a likely 2-1 win for the defendant before the Spears panel became a 10-2 loss after the full Tenth Circuit got involved.  He says he sees "nothing whatsoever suspicious or unusual going on" in Spears.

Howard's story makes sense, but the handling of Spears still seems quite "unusual" to me.  Howard does not reference any other circuit cases handled this way, and I've never seen such an en banc reversal without the issuance of a panel opinion or an opportunity for more briefing or argument.  Significantly, the Third Circuit issued a major ruling (Gunter) supporting the defendant's position after the original briefs and argument to the panel, so there was a significant new development worth briefing and discussing with the court.

The broader story is how circuits are even employing en banc practice to disfavor defendants after Booker.  The government wins roughly 99% of all reasonableness appeals after Booker.  And yet, when the rare defendant prevails before a three-judge panel, circuits seems eager to go en banc to undo the defendant's apparent victory.  Spears is one example, and on-going en bancs in the Sixth and Ninth Circuits also followed a rare defense win on reasonableness review.  To my knowledge, not a single one of the 2000+ government wins on reasonableness review has be vacated and reviewed en banc by any circuit.

December 7, 2006 at 07:00 AM | Permalink


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Does this mean that Courts of Appeal are biased against defendants and in favor of the government! Say it ain’t so!

Posted by: S.cotus | Dec 7, 2006 8:36:54 AM

The Fourth Circuit used to rehear cases en banc before the panel decision was published, sometimes reversing those decisions. That hasn't happened in a little while, though. My sense is that sua sponte en banc reversals occur in circuits where judges on three-judge panels circulate their opinions to the entire court before publication.

Posted by: Anonymous | Dec 7, 2006 10:38:32 AM

Such a practice seems to conflict with the 8th Circuit's internal operating procedures:


The court rarely rules from the bench. The hearing panel ordinarily takes the cases argued under advisement and holds a conference at the conclusion of the day’s oral arguments, reaching a tentative decision in each case. The presiding judge on the panel assigns each case for preparation of a signed opinion, per curiam opinion, or a dispositive order. The judge to whom the case is assigned circulates a proposed opinion or order to the members of the panel who may approve, offer suggestions, or circulate a concurring or dissenting opinion. When at least two members of the hearing panel approve the proposed opinion or order and the third judge either joins or prepares a separate opinion, the decision is released and the judgment is entered. The court strives to issue all opinions within ninety days after argument.


Posted by: | Dec 7, 2006 11:41:22 AM

The Third Circuit has an internal review process by which it can decide to take a case en banc before the panel decision issues:

[Internal Operating Procedure] 9.4 Court Originated Rehearing En banc.

9.4.1 If, during the eight-day circulation of draft opinions pursuant to IOP
5.6.2, a majority of the active judges who are not disqualified, provided
that the judges who are not disqualified constitute a majority of the
judges who are in regular active service, votes that the case be
considered en banc, the chief judge enters an order for rehearing en banc.

9.4.2 If, during the eight-day period for circulation of draft opinions, one judge has timely voted for rehearing, another judge may obtain an extension of
time to consider en banc rehearing by circulating a letter asking that the
time for voting be extended for a period not to exceed five (5) working
days beyond the eight-day time period. This request results in an
automatic extension. Irrespective of the number of such requests, the
voting time automatically is extended this one period only, unless the
chief judge, upon application, grants a further extension of time. In
death penalty cases, the times set forth herein may be reduced pursuant
to Local Appellate Rule Misc. 111.7(b).

9.4.3 During the circulation of draft opinions, a judge who does not desire
rehearing or who has no comment is not expected to respond. The active
judge who has written a dissenting opinion is presumed to have voted for
rehearing en banc absent a notification in writing to the contrary.

Posted by: Steve | Dec 7, 2006 1:48:40 PM

Going en banc without a panel opinion is entirely kosher under FRAP 35, but I do agree it is odd to hear argument by a panel and then decide en banc without an en banc argument. The rule refers to en banc "determination" in its caption but "hearing or rehearing" in its text, and any case important enough to be decided en banc should be important enough to hear en banc.

Posted by: Kent Scheidegger | Dec 7, 2006 3:10:08 PM

The defendant must have caught a panel that had both Bye AND Lay on the same panel, the only two who are inclined to occasionally rule in favor of defendants.

Posted by: Dale Gribble | Dec 7, 2006 5:46:19 PM

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