Fourth Circuit to review en banc recent panel ruling that lengthy (within-guideline) drug sentence was unreasonable
I noted in this post a few months ago the fascinating split Fourth Circuit panel ruling in US v. Freeman, No. 19-4104 (4th Cir. Mar. 30, 2021) (available here), which started this way:
Precias Freeman broke her tailbone as a teenager, was prescribed opioids, and has been addicted to the drugs ever since. In 2018, she was sentenced to serve more than 17 years in prison for possession with intent to distribute hydrocodone and oxycodone in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). After Freeman’s appointed counsel initially submitted an Anders brief asking for the Court’s assistance in identifying any appealable issues, we directed counsel to brief whether Freeman’s sentence is substantively reasonable and whether Freeman received ineffective assistance of counsel on the face of the record. On both grounds, we vacate Freeman’s sentence and remand this case for resentencing.
The dissenting opinion concluded this way:
I have great sympathy for Freeman’s circumstances. Her story reflects failures in our community. One could argue her sentence does not reflect sound policy. But that does not make it unreasonable under the law. And while the record is concerning regarding the effectiveness of counsel Freeman received, it does not conclusively demonstrate a failure to meet the constitutional bar at this juncture. I dissent.
This case is already quite the fascinating story, but this new Fourth Circuit order shows that it is due to have another chapter at the circuit level:
A majority of judges in regular active service and not disqualified having voted in a poll requested by a member of the court to grant rehearing en banc, IT IS ORDERED that rehearing en banc is granted.
I am grateful for the colleague who made sure I saw this order, but I am disappointed that the very, very, very rare federal sentence reversed as unreasonably long is now getting en banc review when so many crazy long sentences so often get so quickly upheld as reasonable. The language of this order suggests the Fourth Circuit decide to rehear this case en banc on its own without even being asked to do so by the Justice Department. And I am also unsure about whether Fourth Circuit en banc procedure will lead to any further briefing or arguments, but the fact that there are two key issues (ineffective assistance of counsel AND reasonableness of the sentences) means that there might be a wide array of opinions ultimately coming from the full Fourth Circuit.
Prior related post: