UNITED STATES v. HOUSTON (2020)

ORDER

Judges Bybee and VanDyke vote to deny and Judge Chhabria would grant the petition for panel rehearing. Judge VanDyke votes to deny and Judge Bybee recommends denial of the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petitions for rehearing and rehearing en banc are therefore DENIED.

I would grant rehearing, vacate our memorandum disposition, and schedule oral argument (which we previously concluded was unnecessary) because of the possibility that we erred in resting our ruling on the conclusion that the district court was not required to consider the sentencing factors in connection with the motion to reduce the defendant's sentence. See United States v. Easter, 975 F.3d 318 (3rd Cir. 2020); United States v. Chambers, 956 F.3d 667 (4th Cir. 2020); United States v. Smith, 959 F.3d 701 (6th Cir. 2020). See also United States v. Kelley, 962 F.3d 470, 478 (9th Cir. 2020) (holding that a plenary resentencing proceeding is not required in this context but contemplating that the district court will consider the statutory sentencing factors in deciding whether the reduction is warranted). But see United States v. Moore, 963 F.3d 725 (8th Cir. 2020); United States v. Mannie, 971 F.3d 1145 (10th Cir. 2020); United States v. Shaw, 957 F.3d 734 (7th Cir. 2020).

Dissent by Judge Chhabria