It’s August, so here come the opinions

Three precedential opinions today, on top of two yesterday, so I think the annual end-of-clerkships opinion surge is here.

U.S. v. Seibert, Jr. — criminal sentencing — affirmance —Restrepo

The Third Circuit today rejected a man’s challenge to the 30-year prison sentence he received for possessing 1,500 child pornography images. At sentencing, the defense presented a psychological report concluding that the man had “the mind of a small child and does not have the capacity to use rationality to control his impulses,” but the Third Circuit rejected his argument that the sentence he received was substantively unreasonable, because it was within the Sentencing Guidelines range and the applicable range is high for deterrence.

The court also rejected the defendant’s procedural argument that the sentencing court erred by applying two similar sentencing enhancements both involving a pattern of activity, holding that applying both enhancements to the same conduct was permitted and that here the court applied them to different conduct.

“Mind of a small child.” 30 years.

Joining Restrepo were Ambro and Hardiman. The case was decided without oral argument.


In re: National Collegiate Student Loan Trusts — civil — partial reversal — Ambro

This appeal involves an especially complicated commercial dispute that arose after a bunch of students defaulted on their student loans. These loans had been packaged and sold as a security. The entity that sold the securities first hired a bank to collect the overdue loans. When the bank allegedly failed at that, the entity tried to hire someone else to collect. The bank went to court, arguing that the entity wasn’t allowed to hire the replacement collector.

Today, the Third Circuit ruled mostly in favor of the bank, holding that while the entity wasn’t barred from hiring a replacement collector, the way it went about it here violated the bank’s contractual rights and required their consent. I think.

Joining Ambro were McKee and Phipps. Arguing counsel were Michael Hanin of New York for one appellant group, Mathew Martel of Jones Day for another appellant, and Kimberly Evans of Grant & Eisenhofer for the appellee entity.


Abreu v. Superintendent Smithfield SCI — habeas corpus — vacatur — Chagares

After a man appealed from the denial of habeas corpus relief and the Third Circuit granted him a certificate of appealability on two of his claims, he was released early into ICE custody and removed (that is, deported) to the Dominican Republic. The Commonwealth argued that his removal mooted his appeal because a separate conviction, not challenged in his pending habeas challenge, permanently barred him from re-entering the U.S., and today the Third Circuit agreed. The court vacated the district court’s ruling and remanded with instructions to dismiss the petition as moot.

Joining Chagares were Restrepo and Bibas. Arguing counsel were Diana Stavroulakis of Pittsburgh for the petitioner and Hugh Burns for the Commonwealth.


Here are yesterday’s two opinions.

U.S. v. Heinrich — criminal — reversal — Smith

Well, here’s an odd one.

The defendant in a child-pornography-production case sought to introduce expert testimony tending to show he lacked the requisite specific intent, and the prosecution moved to exclude the expert’s testimony on Rule 403 and 704(b) grounds. The district judge’s law clerk held a telephonic pretrial status conference, and during this call informed counsel that the court intended to grant the government’s motion to exclude. But the district court never actually ruled. The defendant pleaded guilty while reserving his right to appeal the exclusion of his expert.

On appeal, the Third Circuit vacated and remanded for the district court to issue a ruling and opinion on the motion. The court explained, “we are left in the unenviable position—indeed, impossible position—of attempting to review an adjunct-presented non-ruling,” emphasizing the importance of creating a record on evidentiary rulings, and adding:

We also expect a district judge to assure that no inappropriate assumptions of judicial authority or appearances thereof occur either in chambers or through communications with parties, counsel, or the public. Regrettably, the District Judge’s unusual and inappropriate delegation of this telephone conference to his law clerk (if, in fact, that is what transpired here), created serious appearance problems.

Joining Smith were Chagares and Porter. Arguing counsel were Adam Hallowell of the WDPA U.S. Attorney’s office for the government and Samantha Stern of the WDPA federal defenders for the defendant.


Cabeda v. Attorney General — immigration — reversal — Jordan

A woman was convicted in Pennsylvania of involuntary deviate sexual intercourse for sexual contact with a teenager. Based on this conviction, the government sought to remove her, arguing that her conviction qualified as an aggravated felony under federal immigration law. The BIA ruled that she was removable as an aggravated felon. Applying the categorical approach, the Third Circuit disagreed, holding that the Pa. conviction did not qualify as an aggravated felony and granting the woman’s petition for review. Another BIA reversal.

Sounds pretty straightforward, right? Well, it wasn’t. All three judges on the panel wrote at length, which offhand I can’t remember happening before in the 5+ years I’ve been blogging. And the panel fractured badly, with only Judge Greenaway joining one main piece of Judge Jordan’s opinion (pp. 7–19) and only Judge Krause joining the rest (pp. 19–30). What looks to me like the meatiest part of the disagreement was between Jordan and Krause over whether circuit cases from an earlier, more expansive era of Chevron deference remain binding precedent. Fascinatingly, avowed Chevron foe Jordan was the one on the side of treating the more expansive Chevron cases as binding: “It is giving necessary respect to our existing precedent, even when we ourselves might be inclined to decide things differently now.” In the end Judge Krause concurred in the judgment while Judge Greenaway dissented from it.

The odds are almost always steeply against the Third Circuit granting en banc review, but I won’t be shocked if it’s granted here (if the government seeks it) given the importance and difficulty of the issues.

Arguing counsel were Thomas Griffin of Surin & Griffin for the petitioner and Andrew Oliveira of the DOJ OIL for the government.