The en banc Third Circuit today decided a criminal-sentencing issue, and a three-judge panel decided the remaining sentencing issues in the case.
A quick recap of the procedural history may help. In June of last year, a Third Circuit panel reversed in part in a criminal sentencing appeal; Judge Greenaway dissented in part, arguing that the court should have reversed on an additional ground. The court then granted rehearing en banc with argument limited to the issue on which Judge Greenaway had dissented. A link to the oral argument is here, and I briefly discussed one side’s argument here.
Today, the court issued two opinions: an en banc opinion by Judge Greenaway and a panel opinion on the other issues by Judge Shwartz.
US v. Douglas (en banc opinion) — criminal sentencing — reversal — Greenaway
The en banc Third Circuit today held that an airline mechanic with access to restricted airport areas did not hold a position involving professional or managerial discretion under the § 3B1.3 of the US Sentencing Guidelines. The court refined the approach it took to analyzing when to apply that enhancement.
There were 7 judges in the majority, 4 dissenting. (The case was argued in October, so Judge Bibas did not participate.) Joining Greenaway were Smith, McKee, Ambro, Jordan, Krause, and Restrepo. The four dissenters split into two opinions: one by Shwartz joined by Chagares and Vanaskie, the other by Hardiman alone.
Arguing counsel were Arnold Bernard of Pittsburgh for the defendant and MIchael Ivory for the government.
US v. Douglas (panel opinion) — criminal sentencing — reversal in part — Shwartz
The panel issued an opinion that, according to a footnote, “essentially restates the original Panel opinion except for the issue addressed by the Court en banc.” My summary of the prior opinion is here.