Summary of the Argument
“Rarely does a court encounter a more compelling case for en banc review. All three judges on the original panel have called for the reconsideration of United States v. Evans, 699 F.3d 858 (6th Cir. 2012), an unsound decision that will continue to bind three-judge panels of this Court until it is overruled en banc. A recent decision from the D.C. Circuit Court of Appeals has also contradicted Evans, see United States v. Winstead, 890 F.3d 1082, 1090–91 (D.C. Cir. 2018), and the en banc court should at least consider whether to reconcile its jurisprudence with the D.C. Circuit before leaving a split of authority for the Supreme Court to resolve.
But there are even more reasons for taking this case en banc—beyond those that Mr. Havis has already presented in his trenchant and powerful petition. The very idea of an Article III court “deferring” to mere commentary of the U.S. Sentencing Commission presents grave constitutional concerns, and none of these concerns has been considered or discussed in the Supreme Court rulings that established this deference regime. See Stinson v. United States, 508 U.S. 36 (1993); Auer v. Robbins, 519 U.S. 452 (1997). Judge Thapar acknowledged some of these constitutional issues in his concurrence, see slip op. at 16–18 & n.1 (Thapar, J., concurring), but they deserve a full airing before the en banc court. The Court should not only grant rehearing to reconsider Evans, but it should also instruct the parties to brief and argue the constitutional issues described in Judge Thapar’s concurrence.”