August 09, 2004

Order for rehearing en banc in U.S. v. Mooney

Order of August 6, 2004 in U.S. v. Michael Alan Mooney , No. 02-3388 (8th Cir. July 27, 2004) stating:
On the court’s own motion, rehearing en banc is granted in this case. The opinion and judgment of this court filed July 23, 2004, are vacated. The en banc argument will be held at a time and place to be announced. Petitions for rehearing are not necessary and the court will notify counsel if supplemental briefing is desired. The Mooney panel had upheld the conviction, but divided over whether Blakely applied to the federal sentencing guidelines.
The Mooney majority found the federal sentencing guidelines unconstitutional and non-severable, and the dissent had argued that this was something for the Supreme Court to decide in the first instance. The case had been remanded for resentencing, with the guidelines to be used as advisory. But why is everyone assuming that the Order for rehearing en banc is primarily to address the Blakely issue? Isn't it just as likely that the en banc court is worried about the affirmance of the conviction to begin with?

No, I'm not taking bets on this one.