If you’ve regularly read my blog posts here over the past few years (in other words, if you are my mom), you will know that I find Fourth Circuit published denials of petitions for rehearing to be of particular interest.  Well, another one came out today.  Published Denial here.

This particular denial of rehearing en banc produced three written opinions.  After a 9-5 split of the judges against rehearing en banc, and a 2-1 split against panel rehearing, Judge Niemeyer wrote an opinion supporting the denial of rehearing en banc. Judge Motz wrote an opinion dissenting from the denial of rehearing en banc and voting to grant rehearing en banc, and was joined by Judges King, Wynn, and Thacker. Judge Wynn then also wrote an opinion voting to grant rehearing en banc, joined by Judges Motz, King, and Thacker joined.  Curiously, although Chief Judge Gregory was part of the group that voted in favor of rehearing, he joined neither Judge Motz’s nor Judge Wynn’s opinions advocating for that particular result.

According to Judge Niemeyer, “[a]t the root of this case lies the question of whether the Supreme Court’s decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), overruled its earlier decision in Stinson v. United States, 508 U.S. 36 (1993), for determining the enforceability of and weight to be given the official commentary of the Sentencing Guidelines.”   In deciding the rehearing request, the Fourth Circuit judges grappled with questions of if and when the Fourth Circuit may conclude that the Supreme Court has overruled an earlier decision, especially when the nation’s highest court has not expressly said that it has done as much.  This question, in turn, raised the question of whether two opinions of Fourth Circuit panels on this substantive issue (including the opinion on which rehearing was being sought) are in irreconcilable conflict.

It’s an interesting read.  And, as is often the case when a petition for rehearing spawns a published denial, there is of course the chance that we may now see this case make its way to Washington, DC.  Stay tuned.

–Patrick Kane