En banc proceedings and reasonableness review

A helpful reader informed me that the Third Circuit yesterday granted rehearing en banc in US v. Tomko (panel decision blogged here), a case in which a panel members had written at length about reasonableness when reviewing a probation sentence given to a white-collar defendant.  The original Tomko opinion was handed down before the Supreme Court later provided additional guidance on reasonableness review in Gall and Kimbrough, but the decision to now grant rehearing en banc suggests that Gall and Kimbrough failed to resolve intra-circuit debates over Tomko.

Speaking of intra-circuit debates, it dawns on me that we are still awaiting at least two important en banc reasonableness rulings from other circuits:

• Way back in March, the Second Circuit heard en banc argument in Cavera, which raises the question of whether a federal judge can reasonably justify an above-guideline sentence based on the local conditions (basics blogged here).

• Back in June, the Sixth Circuit heard en banc argument in White, which deals with acquitted conduct enhancements (basics blogged here).  (In White, I was part of an amicus team arguing, through a brief discussed here, that the presumption of reasonableness for within-guideline sentences should not readily apply in acquitted conduct cases.) 

I also know that at least one other circuit also has an en banc reasonable case in its midst as a result of a post-Gall GVR, and I would not be surprised to learn of other like cases still in the pipeline.

As some circuit watchers know, the clerk turnover that takes place around this time of year can often lead to the issuance of long-awaited opinions.  For this reason, I am hopeful that we will be seeing these reasonableness cases and others of interest in the pipeline before too long.