United States v. Randall Gene Cunningham

890 F.2d 199 UNITED STATES of America, Plaintiff-Appellee, v. Randall Gene CUNNINGHAM, Defendant-Appellant. No. 88-3046. United States Court of Appeals, Ninth Circuit. Nov. 24, 1989. 1 Prior Report: 9th Cir., 878 F.2d 311 . 2 Before TANG and SKOPIL, Circuit Judges, and McKIBBEN, District Judge. * ORDER 3 Pursuant to G.O. 5.4(c)(4)(A) the petition for rehearing and the suggestion for rehearing en banc has been presented to the full court which has voted to reject the suggestion for rehearing en banc. Fed.R.App.P. 35(b). 4 The petition for rehearing is denied and the suggestion for rehearing en banc is rejected. 5 A dissent to the decision rejecting rehearing en banc authored by Circuit Judge O'SCANNLAIN and joined by Circuit Judges HALL, BRUNETTI, KOZINSKI, NOONAN, THOMPSON and TROTT is filed herewith. 6 O'SCANNLAIN, Circuit Judge, with whom Circuit Judges CYNTHIA HOLCOMB HALL, BRUNETTI, KOZINSKI, NOONAN, DAVID R. THOMPSON, and TROTT concur, dissenting from the order rejecting the suggestion for rehearing en banc. 7 By rejecting the government's suggestion to rehear this case en banc, the court lets stand an unfortunate and utterly needless hindrance to effective law enforcement.…

ORDER

Pursuant to G.O. 5.4(c)(4)(A) the petition for rehearing and the suggestion for rehearing en banc has been presented to the full court which has voted to reject the suggestion for rehearing en banc. Fed.R. App.P. 35(b).

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

A dissent to the decision rejecting rehearing en banc authored by Circuit Judge O’SCANNLAIN and joined by Circuit Judges HALL, BRUNETTI, KOZINSKI, NOONAN, THOMPSON and TROTT is filed herewith.

dissenting from the order rejecting the suggestion for rehearing en banc.

By rejecting the government’s suggestion to rehear this case en banc, the court lets stand an unfortunate and utterly needless hindrance to effective law enforcement. Congress has stated clearly, as a matter of national policy, that armed career criminals are a threat to the very health of our modern society. Sentence enhancement is the precise antidote identified by the legislative branch to deal with the problem nationwide. Nationwide except, it now becomes, for the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington, plus the territories of Guam and the Northern Mariana Islands. Nationwide, that is, except for about twenty percent of the population of this country and half its land mass. For this court now rules that burglary convictions in nine states and two territories can no longer be taken into account to enhance sentences under the Armed Career Criminal Act of 1984. Because this ruling offends common sense, is contrary to express congressional intent, and contravenes the overwhelming weight of authority from other circuits, I respectfully…