The Third Circuit decides a big, contentious, and confusing criminal-appeal en banc

For over six years, I summarized more or less every precedential opinion issued by the Third Circuit, usually the same day they issued. I was always a bit on the fence about whether my case summaries were worth all the effort, but this past May I finally gave it up, probably for good. Other factors contributed, but in the end they fell victim—truly one the least significant victims—of this awful pandemic. Lawyer + blogger was one thing, but lawyer + blogger + full-time parent + stressed-out human was too much. For those who miss the case write-ups, I apologize.

While I’m not summarizing each case any more, I do aim to continue posting here about especially interesting ones. And, yesterday, the Third Circuit issued an especially interesting one. It was an en banc decision in United States v. Nasir, a criminal appeal. Substantively, it’s an important decision for crim-law practitioners, especially on career-offender sentences, Rehaif, and plain error. And the career-offender section contains an interesting discussion of  administrative deference under Kisor & Auer. But I want to focus on two more procedural points.

First, the opinion opens with an opaque footnote that makes it next to impossible to tell who joined what without reading all the opinions, so I want to clarify that.

The defendant raised 5 issues on appeal:

  • the first 3 are decided by the original panel only. They’re in an opinion that’s captioned as an en banc opinion, but those 3 sections (A, B, and C of section II) are not en banc rulings.
  • the 4th issue, the career offender issue in II.D, is decided en banc, unanimously. Deciding it en banc just lets the court overrule a prior precedent. All 16 judges join this part, and Judge Bibas also concurred separately to discuss lenity.
  • the fifth issue, the Rehaif plain-error issue in II.E, is decided en banc too. Here the court split 9 to 7. The majority was Jordan + McKee, Ambro, Greenaway, Jr., Krause, Restrepo, Matey Scirica, and Rendell. Matey added a concurrence. The dissenters were Porter + Smith, Chagares, Hardiman, Shwartz, Bibas, and Phipps. Both the majority and the dissenting opinions were strongly worded.

Second, I want to offer up my own two cents about how the court structured its decision. As noted, some sections are for the original panel, other sections for the en banc court. That structure is different from how the court has handled this situation in the recent past. For example, in the 2018 Douglas en banc, the court issued two separate decisions simultaneously—one en banc, deciding the en banc issues, and one by the original panel, deciding the remaining issues. In my view, the Douglas approach is very much preferable to the approach taken in Nasir. I predict persistent confusion about the fact that three subsections of yesterday’s opinion aren’t en banc.

My in-the-weeds niggling aside, it’s an impressive decision, written clearly and with vigor all around. The majority plants its flag squarely opposed to most of the other circuits on the Rehaif plain-error issue, so it will bear watching how other circuits, and the Supreme Court, react.