United States v. Olumuyiwa Ola Olabanji

dissenting.

I respectfully dissent from the decision not to rehear this case en banc. The panel has construed an important sentencing statute in a way that contorts congressional intent, oddly constrains the authority of district courts, and creates a conflict with precedent in this and other circuits.

A. The Statutory Framework

Title 18 U.S.C. § 3553 governs the factors that a district court is to consider in imposing sentence on a defendant. It provides, as pertinent here:

(Emphasis added.)

Title 18 U.S.C. § 3565 (a) provides:

(Emphasis added.)

B. The Panel’s Decision is at Odds With the Statutory Text and Legislative History.

The panel’s opinion holds that, when a sentencing court departs from the sentencing range recommended by the policy statements when it is sentencing upon revocation of probation, it must also “consider the sentencing guidelines range for the underlying offense as part of the calculus for imposing an appropriate term of incarceration.” United States v. Olabanji, 268 F.3d 636, 639 (9th Cir.2001). It reaches this result by reasoning that (1) there are no applicable sentencing guidelines for revocation of probation; (2) violation of probation is a “…

286 F.3d 1114 UNITED STATES of America, Plaintiff-Appellee, v. Olumuyiwa Ola OLABANJI, Defendant-Appellant. No. 00-50228. United States Court of Appeals, Ninth Circuit. Filed April 15, 2002. Before BEEZER, T.G. NELSON, and BERZON, Circuit Judges. 1 Order; Dissent by Judge GRABER. 2 The panel has voted to deny the petition for panel rehearing. Judge T.G. Nelson and Judge Berzon vote to deny petition for rehearing en banc and Judge Beezer so recommends. 3 The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35. 4 The petition for panel rehearing and the petition for rehearing en banc are denied. 5 GRABER, Circuit Judge, dissenting. 6 I respectfully dissent from the decision not to rehear this case en banc. The panel has construed an important sentencing statute in a way that contorts congressional intent, oddly constrains the authority of district courts, and creates a conflict with precedent in this and other circuits. A. The Statutory Framework 7 Title 18 U.S.C. §…

Order; Dissent by Judge GRABER.

The panel has voted to deny the petition for panel rehearing. Judge T.G. Nelson and Judge Berzon vote to deny petition for rehearing en banc and Judge Beezer so recommends.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are denied.