United States v. Gipson, Ronald

ORDER A sua sponte request for rehearing en banc was made by an active member of the court and a vote was called for on October 11, 2005. A majority of the active judges voted to deny rehearing en banc. Judge Ann Claire Williams dissented from the decision not to rehear this case en banc and was joined in the dissent by Judge Terence T. Evans. That dissent follows. The request for rehearing en banc is Denied. WILLIAMS, Circuit Judge, with whom EVANS, Circuit Judge, joins, dissenting from the denial of rehearing en banc. In this case, the panel rejected Gipson’s argument that the disparity between the Guidelines’ recommended sentences for cocaine base and powder is unreasonable. I voted to rehear this case en banc, as I think it raises several compelling issues important to our review for “reasonableness” after United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). First, this case raises the issue of the relationship between our prior case law holding that the United States Sentencing Guidelines’ disparity between cocaine base and powder sentences is constitutional and the new post-Booker reasonableness standard. Second, this case would allow this court to consider the threshold for rebutting the presumption of reasonableness that attaches to sentences within the Guidelines. Third, the court could consider whether there are any provisions in the Guidelines that are facially unreasonable in the post Booker world. Although I recognize that recalling a mandate is not a matter to be taken lightly, see Calderon v. Thompson, 523 U.S. *994 538, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998), the circumstances of this case (the opinion was converted from an unpublished order to a published opinion after the mandate issued) convince me that these issues are worthy of our full court’s attention.