The Ninth Circuit today ordered en banc rehearing in United States v. Begay, a case in which a divided panel ruled that second-degree murder is not a crime of violence for purposes of a federal sentence-enhancement provision. Here’s how Judge Randy Smith’s dissent from the panel ruling begins:
MURDER in the second-degree is NOT a crime of violence??? Yet attempted first-degree murder, battery, assault, exhibiting a firearm, criminal threats (even attempted criminal threats), and mailing threatening communications are crimes of violence. How can this be? “I feel like I am taking crazy pills.” [Quoting Will Ferrell in Zoolander.]
The panel ruling, by Carter appointee Dorothy W. Nelson, strikes me as just the sort of ruling that never would have received en banc review before President Trump appointed ten judges to that court. If my quick math is right, there must have at least three Democratic appointees who supported the en banc call. (The court has sixteen Democratic and thirteen Republican appointees, but one Republican appointee, Judge Bridget Bade, didn’t take part, so the twelve remaining Republican appointees would have needed three crossover votes to have a majority.)
I’ll note that this case was originally argued in the Ninth Circuit a full six years ago, and the panel decision that has now been vacated is over two years old. I can’t fathom why the case has taken so long.