United States v. Stacey C. Koon, Cross-Appellee. United States of America v. Laurence M. Powell, Cross-Appellee

dissenting,

I dissent from the refusal to rehear this case en banc. While I agree that there is no prejudicial error that requires reversal of the convictions, I believe that the panel seriously erred in vacating the downward departures ordered by Judge Davies. In my opinion, the district court acted well within its discretion in sentencing the defendants to prison terms below the Guidelines range. Sergeant Koon and Officer Powell were first-time offenders. The sentences ordered by Judge Davies were severe indeed. Neither law nor justice requires that they be set aside or that any longer prison terms be imposed.

In stretching to reach its result, the panel casts aside the basic principles that should underlie judicial sentencing, even in the age of the Guidelines. It is only by exhalting the rigid calculations of charts and tables over the judgment of human beings that the panel reaches its conclusion that Judge Davies was too lenient. The panel’s encroachment on district court discretion epitomizes the mechanical and inflexible approach to sentencing that so many critics contend the Guidelines themselves represent. 1 Indeed, under the panel’s view of the district judge’s role…

ORDER

All of the panel members have voted to deny the petitions for rehearing of both defendants.

Judge BROWNING and Judge FLETCHER have voted to reject the suggestions for rehearing en banc of both defendants and Judge FITZGERALD has so recommended.

The full court was advised of the suggestion for rehearing en banc. A judge of the court requested a vote as to whether to take the case en banc. A vote was taken. The request failed to secure the affirmative vote of a majority of the active non-recused members of the court. Judge Trott was recused.

The petitions for rehearing of both defendants are denied and the suggestions for rehearing en banc of both defendants are rejected.

specially concurring in the dissent,

With the exception of Part IV, I am delighted to concur in Judge Reinhardt’s dissent. While desirability of disclosure of en bane voting results is a worthy topic for discussion, I am not convinced this is the appropriate forum.

45 F.3d 1303 UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Stacey C. KOON, Defendant-Appellant, Cross-Appellee. UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Laurence M. POWELL, Defendant-Appellant, Cross-Appellee. Nos. 93-50561, 93-50608, 93-50562 and 93-50609. United States Court of Appeals, Ninth Circuit. Jan. 12, 1995. As Amended Feb. 2, 1995. Joel Levine, Encino, CA, William J. Kopeny, Santa Ana, CA, for defendants-appellants-cross-appellees. Steven D. Clymer, Asst. U.S. Atty., Los Angeles, CA, Irv Gornstein, Civ. Rights Div., U.S. Dept. of Justice, Washington, DC, for plaintiff-appellee-cross-appellant. Prior report: 34 F.3d 1416 . Before: BROWNING and FLETCHER, Circuit Judges, and FITZGERALD, * District Judge. ORDER All of the panel members have voted to deny the petitions for rehearing of both defendants. Judge BROWNING and Judge FLETCHER have voted to reject the suggestions for rehearing en banc of both defendants and Judge FITZGERALD has so recommended. The full court was advised of the suggestion for rehearing en banc. A judge of the court requested a vote as to whether to take the case en banc. A vote was taken. The request…