Michael Stephan
On Tuesday, the Ninth Circuit Court of Appeals decided to hear United States v. Leal-Felix en banc. When a case is reheard en banc, the three-judge panel opinion is stripped of precedential force and—in the Ninth Circuit—a new, eleven-judge panel rehears the case. En banc hearings are relatively uncommon and are typically reserved for cases of particular importance, many of which are later heard by the Supreme Court. Leal-Felix, therefore, is a case to watch. It presents the following issue: “[W]hether a citation for a traffic violation is an arrest countable for criminal history under the Sentencing Guidelines.”
In Leal-Felix, this question was important in determining Leal-Felix’s criminal history category, which is a major part of the sentencing calculus under the Guidelines. The Sentencing Guidelines provide judges with an advisory range of incarceration time for each convicted defendant. Leal-Felix was convicted of violating 8 U.S.C. § 1326(a) by illegally entering the U.S. after having been deported. Given the seriousness of his crime and his criminal history category, the Sentencing Guidelines advised that he be incarcerated for 21 to 27 months. Accordingly, the trial judge sentenced Leal-Felix to 21 months of imprisonment.
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