Sixth Circuit going en banc on acquitted conduct enhancements!

I am pleased to be able to end a busy week and month by reporting the exciting news that the Sixth Circuit today has ordered en banc review in White, a case involving the status of acquitted conduct guideline enhancements in the wake of Booker.  Here is today's pacer entry:

11/30/2007 ORDER filed granting petition for en banc rehearing [3670756-2] filed by Mr. Kevin M. Schad for Roger Clayton White to reinstate the appeal. The previous decision and judgment of this court is vacated, the mandate is stayed. Danny J. Boggs, Chief Circuit Judge; Boyce F. Martin , Jr., Alice M. Batchelder, Martha Craig Daughtrey, Karen Nelson Moore, R. Guy Cole , Jr., Eric L. Clay, Ronald Lee Gilman, Julia Smith Gibbons, John M. Rogers, Jeffrey S. Sutton, Deborah L. Cook, David W. McKeague, Richard Allen Griffin, Circuit Judges.

11/30/2007 BRIEFING LETTER SENT resetting briefing schedule: supplemental appellant brief + 25 copies of initial brief due 01/07/2008; supplemental appellee brief + 25 copies of initial brief due 02/11/2008; 25 copies of initial joint appendix due 01/07/2008.  The supplemental briefs should not exceed 25 pages.

I assume that the Sixth Circuit is likely also to schedule a oral argument before the full court; the timeline set for the supplemental briefs suggests that oral argument could take place in late winter with a decision from the full Sixth Circuit perhaps as early as spring. 

Not only is this exciting news for those eager to see a thoughtful circuit wrestle with an important and intricate post-Booker topic, it also likely will mean that the issue of acquitted conduct will garner additional attention from various important folks in the months ahead.  For instance, I'd expect someone from the SG's office to argue White before the full Sixth Circuit.  Also, I think just the grant of en banc review could increase the likelihood of the Supreme Court taking up this issue before too long.  And, if the full Sixth Circuit breaks from other circuits to find post-Booker constitutional problems with acquitted conduct enhancements, an SG appeal and a cert grant seem almost certain.

Some related posts on White and acquitted conduct:

• Rooting for the Sixth Circuit to take acquitted conduct en banc in White
• Opposition to considering acquitted conduct en banc in White
• Will the Sixth Circuit consider acquitted conduct enhancements en banc?
• Strong commentary on acquitted conduct sentencing
• A terrific district court opinion on acquitted conduct
• New (or renewed) ideas and arguments suggested by Rita
• Sincere questions about acquitted conduct sentencing