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December 6, 2006

The (hinky?) procedural back-story on Spears

As detailed here, yesterday the Eighth Circuit in Spears issued a major en banc ruling on crack sentencing after Booker.  When the ruling came out, I couldn't remember when the en banc oral argument took place.  Professor Mark Osler then provided this report detailing the procedural quirkiness in this case:

On June 14 of this year, I argued before a three-judge panel in the Eighth Circuit case of U.S. v. Spears. The panel was composed of Judges Lay, Bye, and Riley.  I was arguing on behalf of a group of amici supporting the defendant's downward variance based on the harshness of the 100/1 powder/crack ratio.

At argument, it was clear that Judges Lay and Bye had some sympathy to our side, and that Judge Riley (while very knowledgeable) was hostile to our position.  For months, no opinion was issued.  Somewhat mysteriously, an en banc opinion has now been issued, with Riley writing for the majority to reverse the sentence and Lay and Bye dissenting.

What floored me was that there was no en banc hearing or briefing — the case seamlessly converted into an en banc decision without a panel opinion being issued.  Checking the docket, I see that the following order was filed on October 18 of this year:

On its own motion, the court en banc has voted that these cases will be resubmitted en banc, and the June 14, 2006 submission before the panel consisting of Judge Bye, Judge Riley, and Judge Lay is vacated.  The court en banc will determine whether further briefing and argument are required, and if they are, the clerk will notify the parties of any schedule which is established for further briefing and argument.

From what I can surmise, then, what happened is the following: Initially, the panel was divided 2-1, with Judge Bye writing a majority opinion and Judge Riley preparing a dissent.  However, at this point the case did not proceed to the logical next step of a ruling being issued by the panel.  Instead, Judge Riley was able to get the remainder of the judges in the circuit to agree to his dissent, and "on its own motion" the court as a whole voted to make the Riley dissent the majority opinion of the en banc court, without the messiness of hearings or a panel opinion.

Does anyone else see a problem with this process?  At the very least, I would like to have had the chance to address the questions of the remainder of the court.

December 6, 2006 at 07:41 AM | Permalink


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This is just one step short of the civil law practice of appellate courts auditing trial court decisions at random even when no one appeals.

Posted by: ohwilleke | Dec 6, 2006 4:50:01 PM

This case shows why appeals courts circulate opinions internally before release. I have also seen panel opinions come with a warning that the potentially controversial issue was presented to the full court and nobody called for a vote on en banc rehearing.

Posted by: John Carr | Dec 6, 2006 8:11:40 PM

I have seen this before. Client had a sentenced vacated. He should have been let out of jail. He was KEPT in jail and one year later, the vacated sentence was UNPUBLISHED and a "Opinion" of a judge changed the vacated sentence and made this
the new "order" and "judgement"

Once a Per Curium order is in and the court does not like it, you can't then again get ANOTHER decision at the same court!

I bet if you look for the original argument to Enbanc and its dockets, paperwork etc. you will find its not complete.

An opinion is simply that. An opinion. Opinions are non precedential unless it is a Per Curium order by the court.

Unfortunately, this happens to people more than we are wiling to admit.

Posted by: Carla | Dec 7, 2006 7:11:29 AM

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