Posts Tagged ‘en banc’

It has taken me some extra time to post about the Fourth Circuit’s en banc decision earlier this week in United States v. Vann because it has taken me a long time to get through the 100 pages of opinions. The issue in the case is whether a certain individual’s three convictions under North Carolina’s indecent liberties statute qualify as convictions for a “violent felony” under 18 U.S.C. § 924(e)(2), thereby triggering a mandatory minimum sentence under the federal Armed Career Criminal Act (“ACCA”). The short answer, for this defendant, is no. But whether any convictions for violating the indecent liberties statute can qualify as a “violent felony” in some other case remains unclear. (The write-ups by Jonathan Byrne at Fourth Circuit Blog and Matt Kaiser at his law firm’s blog provide a helpful overview of the opinions and issues.)

The simplest way of understanding the en banc decision, at one level, is in relation to the vacated panel opinion. Judge Niemeyer authored that split decision, which Judge Shedd joined. Judge King dissented. The panel opinion had affirmed the application of the ACCA 15-year mandatory minimum.

The en banc court consisted of twelve judges: Chief Judge Traxler, and Judges Wilkinson, Niemeyer, Motz, King, Gregory, Shedd, Agee, Davis, Keenan, Wynn, and Diaz. (Judge Duncan did not participate and Judge Floyd was not yet on the court.) By a 10-2 vote, the en banc court voted to vacate the sentence. The only two judges supporting the panel opinion are the two judges who joined it initially (Judges Niemeyer and Shedd). But the other 10 judges on the en banc court split 5-4-1 on their reasoning. (more…)


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The Fourth Circuit’s 8-5 en banc decision in United States v. Simmons holds that the Fourth Circuit’s earlier decision in United States v. Harp, 406 F.3d 242 (4th Cir. 2005), “no longer remains good law” in light of a Supreme Court decision interpreting a different statute.

At issue in Simmons and Harp is how to determine whether a particular offense under North Carolina law is “punishable by imprisonment for a term exceeding one year,” and therefore qualifies as a predicate felony conviction under the federal Controlled Substances Act. To simplify (perhaps oversimplify): The old approach (in Harp) looked to the offense itself and asked whether any defendant prosecuted for that offense could be eligible for punishment of more than one year. The new approach (in Simmons) looks to the maximum punishment for which the offender was eligible based on the particular facts that dictated where the offender’s sentence fell in North Carolina’s structured sentencing scheme.

Simmons’s prior offense of possession with intent to sell no more than ten pounds of marijuana was a Class 1 felony under North Carolina law. A Class 1 felony is punishable by a sentence exceeding one year’s imprisonment if certain conditions are satisfied. Those conditions were not satisfied with respect to Simmons’s prior offense. The Fourth Circuit held, consequently, that Simmons was not eligible for the 10-year statutory minimum under the federal Controlled Substances Act.

Judge Motz wrote the majority opinion, which was joined by Judges King, Gregory, Shedd, Davis, Keenan, Wynn, and Diaz. Judge Agee authored the principal dissent, joined by Chief Judge Traxler and Judges Wilkinson, Niemeyer, and Duncan. Judge Duncan also authored a solo dissent.

The decision appears noteworthy for a few reasons.


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Here are two maps to help: Map 1, Map 2. I just returned from a trip to a family resort area near the easternmost point of the Fourth Circuit, according to Google Maps. The two linked maps suggest the easternmost point may be elsewhere. I trust Google on this one.

There are several opinions to catch up on from the past couple of days, including a fascinating 8-5 en banc split on a sentencing issue. (Which judge in the majority might you not have expected to be there if you were casually relying on conventional wisdom and knew who the other 7 judges were?) Opinions issued today include another split criminal procedure decision, as well as the first opinion from a case argued before the panel deciding the challenges to the individual mandate. Stay tuned.

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On July 11, a closely divided Fourth Circuit issued an en banc decision in Aikens v. Ingram. (Apologies for the delay in posting. I was vacationing in the northwestern reaches of the Fourth Circuit’s jurisdiction when the decision came down.)

The ruling affirms the dismissal of a former military reservist’s claim for relief from a prior judgment under Rule 60(b)(6). This provision comes at the tail end of Rule 60(b), which sets forth various circumstances that justify relief from a final judgment. After five subsections identifying particular circumstances, (b)(6) authorizes relief from a final judgment “for any other reason that justifies relief.” The varying interpretations of this capaciously worded procedural provision provide insight into the state of the Fourth Circuit as President Obama’s appointees (Davis, Keenan, Diaz, and Wynn) continue to settle in. (Note: Judge Wynn did not participate in the decision.)

The en banc ruling largely tracks the panel opinion. Judge Niemeyer authored that opinion, joined by a senior Sixth Circuit judge sitting by designation. Judge King dissented.

The principal en banc opinions had the same authors in the same arrangement. Judge Niemeyer wrote for the majority, to affirm, joined by Traxler, Wilkinson, Shedd, Duncan, Agee, and Diaz. Judge King wrote the lead dissent,to vacate and remand, joined by Motz, Gregory, Davis, and Keenan. There were two additional opinions: a concurrence by Judge Diaz (joined by Shedd, Duncan, and Agee), and a solo dissent by Judge Davis.

The voting distribution reveals some crossover from what one might predict based solely on perceived ideology as measured by the appointing President. If Obama-appointed Judge Diaz had voted to vacate and remand instead of affirm, the court would have been split 6-6. (And if Judge Wynn had participated and also voted to vacate and remand, the outcome would have gone the other way.) As it is however, Judge Diaz voted to affirm. The substantive and tonal differences between Judge Diaz’s concurrence and Judge Davis’s dissent are notable.

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