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En banc proceedings and reasonableness review

By Douglas A. Berman

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)...continue to full post

Full post as published by Sentencing Law and Policy on August 20, 2008 (boomark / email).