FILED: March 23, 2022
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
___________________
No. 21-4067 (5:19-cr-00339-FL-1) ___________________
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LENAIR MOSES, a/k/a Bones,
Defendant – Appellant.
------------------------------
NEW CIVIL LIBERTIES ALLIANCE,
Amicus Supporting Rehearing Petition.
ORDER ___________________
The court denies the petition for rehearing en banc.
A requested poll of the court failed to produce a majority of judges in regular active
service and not disqualified who voted in favor of rehearing en banc. Chief Judge Gregory,
Judge Motz, Judge King, Judge Wynn, and Judge Thacker voted to grant rehearing en banc. Judge Wilkinson, Judge Niemeyer, Judge Agee, Judge Diaz, Judge Harris, Judge
Richardson, Judge Quattlebaum, Judge Rushing, and Judge Heytens voted to deny
rehearing en banc.
The court further denies the motion for rehearing before the panel. Judge Niemeyer
and Judge Cullen voted to deny panel rehearing, and Judge King voted to grant panel
rehearing.
Judge Niemeyer wrote an opinion supporting the denial of rehearing en banc. Judge
Motz wrote an opinion dissenting from the denial of rehearing en banc and voting to grant
rehearing en banc, in which Judges King, Wynn, and Thacker joined. Judge Wynn wrote
an opinion voting to grant rehearing en banc, in which Judges Motz, King, and Thacker
joined.
Entered at the direction of Judge Niemeyer.
For the Court
/s/ Patricia S. Connor, Clerk
2 NIEMEYER, Circuit Judge, supporting the denial of rehearing en banc:
At the root of this case lies the question of whether the Supreme Court’s decision in
Kisor v. Wilkie, 139 S. Ct. 2400 (2019), overruled its earlier decision in Stinson v. United
States, 508 U.S. 36 (1993), for determining the enforceability of and weight to be given
the official commentary of the Sentencing Guidelines. Stinson held that Guidelines
commentary, even when the related Guideline is unambiguous, is authoritative and binding
on courts, unless the commentary is inconsistent with law or the Guideline itself. Id. at 38,
43, 44. Kisor, on the other hand, limited controlling deference to an executive agency’s
reasonable interpretation of its own regulations to where “the regulation is genuinely
ambiguous.” 139 S. Ct. at 2415 (emphasis added). Thus, under Stinson, Guidelines
commentary would be authoritative and binding regardless of whether the Guideline to
which it is attached is ambiguous, whereas under Kisor, Guidelines commentary would
receive such deference only if the Guideline were “genuinely ambiguous.” The distinction
is meaningful to federal courts’ continuing reliance on Guidelines commentary when
sentencing criminal defendants.
The panel concluded that until the Supreme Court expresses its view on the point,
we should not hold that the Court has overruled one of its earlier opinions, recognizing the
Court’s instruction that “it is this Court’s prerogative alone to overrule one of its
precedents.” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); see also Payne v. Taslimi,
998 F.3d 648, 654 (4th Cir. 2021) (“It is beyond our power to disregard a Supreme Court
decision, even if we are sure the Supreme Court is soon to overrule it”), cert. denied, 142 S.
3 Ct. 716 (2021). Accordingly, the panel concluded that in determining the enforceability of
and weight to be given Guidelines commentary — which was the precise issue before the
Court in Stinson, but not in Kisor — we should continue to apply Stinson.
While this case was pending in this court and the panel opinion was being prepared,
another case, United States v. Campbell, 22 F.4th 438 (4th Cir. 2022), was also pending
before another panel as the opinion was being prepared. The opinion in Campbell,
however, was filed several days before the opinion in this case.
Campbell held that a prior conviction for a “controlled substance offense,” as that
term is defined in U.S.S.G. § 4B1.2(b), does not include a conviction for “attempting to
commit such [an] offense[],” as stated in the commentary to that Guideline. U.S.S.G.
§ 4B1.2 cmt. n.1 (emphasis added). The court concluded that the commentary was
“plainly” inconsistent with the Guideline because “an attempt offense . . . is not a
‘controlled substance offense,’” as the latter is defined in the Guideline itself. Campbell,
22 F.4th at 444. Applying the guidance of Stinson “that commentary to the Sentencing
Guidelines ‘is authoritative unless it . . . is inconsistent with . . . [the] guideline,’” the court
therefore held that the commentary before it was unenforceable. Id. (emphasis added)
(quoting Stinson, 508 U.S. at 38). The Campbell court also provided additional but
conditional support to its holding, stating that “if there were any doubt that under Stinson
the plain text requires this result,” then Kisor would also support it, id. (emphasis added),
as the Kisor Court held that a court is not to afford controlling deference to an agency’s
interpretation of its own regulation unless the regulation is found to be “genuinely
4 ambiguous after exhausting all the traditional tools of construction,” id. at 445 (cleaned up)
(quoting Kisor, 139 S. Ct. at 2415). Considering those traditional tools, the Campbell court
found that the Guideline unambiguously excluded attempt offenses. Id. As a result, there
was no need to explore the conflict between Stinson and Kisor, and it was not explored.
In his dissent from the panel opinion in this case, Judge King stated,
The legal analysis of the panel majority in this case conflicts with the Campbell precedent in concluding that the Supreme Court’s decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), is inapplicable. Crucially, no panel of this Court is entitled to circumscribe or undermine an earlier panel decision. See McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004) (en banc).
23 F.4th 347, 359 (4th Cir. 2022) (King, J., dissenting in part and concurring in the
judgment) (emphasis added). The McMellon court, however, held more narrowly that
“when there is an irreconcilable conflict between opinions issued by three-judge panels of
this court, the first case to decide the issue is the one that must be followed, unless and until
it is overruled by this court sitting en banc or by the Supreme Court.” 387 F.3d at 334
(emphasis added).
While there is some tension between the analyses in the two opinions relating to the
reach of Kisor, there is a legitimate question about whether the panel opinion here is in
“irreconcilable conflict” with Campbell. Campbell, after all, relied only on Stinson for its
holding — reasoning that its conclusion was “require[d]” by Stinson, 22 F.4th at 444 — as
did the panel in this case, and Campbell’s discussion of Kisor was not only conditional but
Free access — add to your briefcase to read the full text and ask questions with AI
FILED: March 23, 2022
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
___________________
No. 21-4067 (5:19-cr-00339-FL-1) ___________________
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LENAIR MOSES, a/k/a Bones,
Defendant – Appellant.
------------------------------
NEW CIVIL LIBERTIES ALLIANCE,
Amicus Supporting Rehearing Petition.
ORDER ___________________
The court denies the petition for rehearing en banc.
A requested poll of the court failed to produce a majority of judges in regular active
service and not disqualified who voted in favor of rehearing en banc. Chief Judge Gregory,
Judge Motz, Judge King, Judge Wynn, and Judge Thacker voted to grant rehearing en banc. Judge Wilkinson, Judge Niemeyer, Judge Agee, Judge Diaz, Judge Harris, Judge
Richardson, Judge Quattlebaum, Judge Rushing, and Judge Heytens voted to deny
rehearing en banc.
The court further denies the motion for rehearing before the panel. Judge Niemeyer
and Judge Cullen voted to deny panel rehearing, and Judge King voted to grant panel
rehearing.
Judge Niemeyer wrote an opinion supporting the denial of rehearing en banc. Judge
Motz wrote an opinion dissenting from the denial of rehearing en banc and voting to grant
rehearing en banc, in which Judges King, Wynn, and Thacker joined. Judge Wynn wrote
an opinion voting to grant rehearing en banc, in which Judges Motz, King, and Thacker
joined.
Entered at the direction of Judge Niemeyer.
For the Court
/s/ Patricia S. Connor, Clerk
2 NIEMEYER, Circuit Judge, supporting the denial of rehearing en banc:
At the root of this case lies the question of whether the Supreme Court’s decision in
Kisor v. Wilkie, 139 S. Ct. 2400 (2019), overruled its earlier decision in Stinson v. United
States, 508 U.S. 36 (1993), for determining the enforceability of and weight to be given
the official commentary of the Sentencing Guidelines. Stinson held that Guidelines
commentary, even when the related Guideline is unambiguous, is authoritative and binding
on courts, unless the commentary is inconsistent with law or the Guideline itself. Id. at 38,
43, 44. Kisor, on the other hand, limited controlling deference to an executive agency’s
reasonable interpretation of its own regulations to where “the regulation is genuinely
ambiguous.” 139 S. Ct. at 2415 (emphasis added). Thus, under Stinson, Guidelines
commentary would be authoritative and binding regardless of whether the Guideline to
which it is attached is ambiguous, whereas under Kisor, Guidelines commentary would
receive such deference only if the Guideline were “genuinely ambiguous.” The distinction
is meaningful to federal courts’ continuing reliance on Guidelines commentary when
sentencing criminal defendants.
The panel concluded that until the Supreme Court expresses its view on the point,
we should not hold that the Court has overruled one of its earlier opinions, recognizing the
Court’s instruction that “it is this Court’s prerogative alone to overrule one of its
precedents.” State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); see also Payne v. Taslimi,
998 F.3d 648, 654 (4th Cir. 2021) (“It is beyond our power to disregard a Supreme Court
decision, even if we are sure the Supreme Court is soon to overrule it”), cert. denied, 142 S.
3 Ct. 716 (2021). Accordingly, the panel concluded that in determining the enforceability of
and weight to be given Guidelines commentary — which was the precise issue before the
Court in Stinson, but not in Kisor — we should continue to apply Stinson.
While this case was pending in this court and the panel opinion was being prepared,
another case, United States v. Campbell, 22 F.4th 438 (4th Cir. 2022), was also pending
before another panel as the opinion was being prepared. The opinion in Campbell,
however, was filed several days before the opinion in this case.
Campbell held that a prior conviction for a “controlled substance offense,” as that
term is defined in U.S.S.G. § 4B1.2(b), does not include a conviction for “attempting to
commit such [an] offense[],” as stated in the commentary to that Guideline. U.S.S.G.
§ 4B1.2 cmt. n.1 (emphasis added). The court concluded that the commentary was
“plainly” inconsistent with the Guideline because “an attempt offense . . . is not a
‘controlled substance offense,’” as the latter is defined in the Guideline itself. Campbell,
22 F.4th at 444. Applying the guidance of Stinson “that commentary to the Sentencing
Guidelines ‘is authoritative unless it . . . is inconsistent with . . . [the] guideline,’” the court
therefore held that the commentary before it was unenforceable. Id. (emphasis added)
(quoting Stinson, 508 U.S. at 38). The Campbell court also provided additional but
conditional support to its holding, stating that “if there were any doubt that under Stinson
the plain text requires this result,” then Kisor would also support it, id. (emphasis added),
as the Kisor Court held that a court is not to afford controlling deference to an agency’s
interpretation of its own regulation unless the regulation is found to be “genuinely
4 ambiguous after exhausting all the traditional tools of construction,” id. at 445 (cleaned up)
(quoting Kisor, 139 S. Ct. at 2415). Considering those traditional tools, the Campbell court
found that the Guideline unambiguously excluded attempt offenses. Id. As a result, there
was no need to explore the conflict between Stinson and Kisor, and it was not explored.
In his dissent from the panel opinion in this case, Judge King stated,
The legal analysis of the panel majority in this case conflicts with the Campbell precedent in concluding that the Supreme Court’s decision in Kisor v. Wilkie, 139 S. Ct. 2400 (2019), is inapplicable. Crucially, no panel of this Court is entitled to circumscribe or undermine an earlier panel decision. See McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004) (en banc).
23 F.4th 347, 359 (4th Cir. 2022) (King, J., dissenting in part and concurring in the
judgment) (emphasis added). The McMellon court, however, held more narrowly that
“when there is an irreconcilable conflict between opinions issued by three-judge panels of
this court, the first case to decide the issue is the one that must be followed, unless and until
it is overruled by this court sitting en banc or by the Supreme Court.” 387 F.3d at 334
(emphasis added).
While there is some tension between the analyses in the two opinions relating to the
reach of Kisor, there is a legitimate question about whether the panel opinion here is in
“irreconcilable conflict” with Campbell. Campbell, after all, relied only on Stinson for its
holding — reasoning that its conclusion was “require[d]” by Stinson, 22 F.4th at 444 — as
did the panel in this case, and Campbell’s discussion of Kisor was not only conditional but
was given because Kisor’s application would lead to the same result. Campbell did not
address, nor did it need to address, the tension between Stinson and Kisor, even as it relied 5 on Stinson. In this case, the panel did explore the tension, holding that Stinson continues
to apply.
I submit therefore that whether there is an irreconcilable conflict between this case
and Campbell is both an open and a debatable question, as it does not appear that resolution
of the tension would alter the outcomes, as both cases applied Stinson. Thus, the tension
between this case and Campbell would be better addressed in a future case where the issue
becomes meaningful to that case’s disposition. In the meantime, we would welcome the
Supreme Court’s advice on whether Stinson or Kisor controls the enforceability of and
weight to be given Guidelines commentary, an issue that could have far-reaching results.
But for now, I believe it wise to postpone addressing the issue until it is presented to us
directly in a future case. Therefore, I vote against rehearing this case en banc.
6 DIANA GRIBBON MOTZ, Circuit Judge, with whom Judges KING, WYNN and
THACKER join, dissenting from the denial of rehearing en banc and voting to grant
rehearing en banc:
I respectfully dissent from the denial of rehearing en banc and vote to grant
rehearing en banc. As Judge King correctly noted in his dissent from the panel opinion, a
central holding in this case — that Kisor v. Wilkie, 139 S. Ct. 2400 (2019), does not apply
to the Sentencing Guidelines’ Commentary — directly conflicts with an earlier panel
opinion of our court, United States v. Campbell, 22 F.4th 438 (4th Cir. 2022). I continue
to believe that Campbell was correctly decided, but merits aside, resolving intra-circuit
conflicts is a quintessentially proper basis for en banc rehearing. See Fed. R. App. P.
35(b)(1)(A). I fear the court’s failure to resolve this conflict now risks stoking confusion
over the state of our precedent.
Absent resolution via en banc rehearing, it is worth remembering that the en banc
court (with only a single judge dissenting on the question) has long expressly held that
“[w]hen published panel opinions are in direct conflict on a given issue, the earliest opinion
controls, unless the prior opinion has been overruled by an intervening opinion from this
court sitting en banc or the Supreme Court.” McMellon v. United States, 387 F.3d 329,
333 (4th Cir. 2004) (en banc) (emphasis added). That remains the law. See, e.g., United
States v. Runyon, 994 F.3d 192, 201 (4th Cir. 2021) (Niemeyer, J.) (relying on McMellon
to reject litigant’s request to overturn panel precedent).
7 Campbell was argued, decided, and published before Moses. The two cases are in
direct and irreconcilable conflict on a given issue, i.e., whether Kisor applies to the
Commentary to the Sentencing Guidelines. 1 Compare Campbell, 22 F.4th at 444 (holding
that Kisor v. Wilkie applies to the Commentary), with Moses, 23 F.4th at 349 (“Stinson
continues to apply unaltered by Kisor.”). And contrary to Judge Niemeyer’s suggestion
that Campbell’s discussion of Kisor is dicta; in fact Campbell’s discussion of Kisor is an
alternative holding. See Campbell, 22 F.4th at 444 (noting that if there is “doubt” as to the
correctness of our holding “under Stinson,” Kisor “renders this conclusion indisputable.”).
“[A]lternative holdings are not dicta.” Gestamp South Carolina, LLC v. NLRB, 769 F.3d
254, 262 n.4 (4th Cir. 2014). Thus, under our well-established en banc precedent in
McMellon, unless and until the Supreme Court or this court sitting en banc say otherwise,
the panel opinion in the case that is first argued, decided, and published controls. Campbell
is that opinion.
1 Judge Niemeyer places great emphasis on McMellon’s use of the word “irreconcilable.” See ante at *5. A glance at McMellon reveals that we there used “irreconcilable conflict” and “direct conflict” interchangeably. See 387 F.3d at 333–34. In any case, it is quite clear that Campbell and Moses are directly and irreconcilably in conflict on an issue at the heart of each case.
8 WYNN, Circuit Judge, with whom Judges MOTZ, KING, and THACKER join, voting to
grant rehearing en banc: 1
To the extent that there is an irreconcilable conflict between our opinions in United
States v. Campbell, 22 F.4th 438 (4th Cir. 2022), and United States v. Moses, 23 F.4th 347
(4th Cir. 2022), we all agree that Campbell, as the earlier published opinion, must control.
See McMellon v. United States, 387 F.3d 329, 333 (4th Cir. 2004) (en banc) (“When
published panel opinions are in direct conflict on a given issue, the earliest opinion
controls, unless the prior opinion has been overruled by an intervening opinion from this
court sitting en banc or the Supreme Court.”).
Our disagreement stems over the proper use of Federal Rule of Appellate Procedure
35. That rule could not be clearer: an en banc hearing is “not favored and ordinarily will
not be ordered unless” “en banc consideration is necessary to secure or maintain uniformity
of the court’s decisions” or “the proceeding involves a question of exceptional
importance.” Fed. R. App. P. 35(a) (emphasis added). Both factors are unquestionably
present in the instant case.
To start, the majority opinion in Moses—decided January 19, 2022—flatly
contradicts our earlier circuit precedent in Campbell—decided January 7, 2022. In
1 A majority of this Court’s fourteen active judges vote to summarily deny, without opinion, to rehear this matter en banc. The one opinion expressing the reasons of a single judge for denying en banc rehearing and the two opinions expressing the reasons of four judges to grant en banc review represent only the views of those judges. In short, nine of the fourteen voting judges offer no opinion regarding why they voted to deny or grant rehearing en banc.
9 Campbell, the three-judge panel, consisting of Chief Judge Gregory, Judge Motz, and
Judge Thacker, unanimously held that the framework articulated in Kisor v. Wilkie, 139 S.
Ct. 2400 (2019), applies to the Sentencing Commission’s commentary to the Sentencing
Guidelines. 22 F.4th at 444–47. A mere twelve days later, the two-judge majority in Moses,
consisting of Judge Niemeyer and District Judge Cullen (sitting by designation), issued an
opinion stating that the Kisor framework was inapplicable to the Guidelines commentary. 2
23 F.4th at 349. That is an undeniable—and irreconcilable—conflict.
But despite the clear contradiction with Campbell, the Moses majority, over the
protestations of Judge King in dissent, did not even deign to mention Campbell, much less
distinguish it (because it couldn’t).
Due to that clear conflict, Campbell must control as the earlier published opinion.
See McMellon, 387 F.3d at 333. But that settled rule did not stop the Moses majority from
blatantly contradicting Campbell a mere twelve days after it was issued—even though the
Moses dissent alerted the majority to the conflict and spelled out the earliest-published-
opinion rule. See Moses, 23 F.4th at 359–60 (King, J., dissenting in part). And if that well-
settled rule can be so casually—and apparently knowingly—ignored, then what’s to stop
2 The Moses majority reached this conclusion even though both parties in that case agreed that Kisor does apply to the Guidelines commentary. See Response Br. at 14–15; Reply Br. at 1–2. And in doing so, it candidly acknowledged that its holding departed from those of other circuits. Compare Moses, 23 F.4th at 349, with United States v. Nasir, 17 F.4th 459, 469–72 (3d Cir. 2021) (en banc) (reaching the opposite conclusion of Moses), and United States v. Riccardi, 989 F.3d 476, 484–86 (6th Cir. 2021) (same).
10 future panels from doing precisely the same? Especially when the full Court is evidently
unwilling to correct such an overreach?
Judge Niemeyer, writing in support of the denial of rehearing en banc, suggests that
no such overreach occurred here. He opines that while there is “some tension” between
Campbell and Moses, Campbell’s discussion of Kisor was “only conditional” and
Campbell failed to address, “nor did it need to address, the tension between Stinson and
Kisor.” Niemeyer Op. at 5. In other words, Judge Niemeyer is suggesting that Campbell’s
discussion of Kisor is dicta, so McMellon’s earliest-published-opinion rule does not apply
here.
If that is true, it is hard to understand why the Moses majority did not address it in
their opinion. Surely that discussion would have been helpful to future panels and litigants,
especially if, as Judge Niemeyer acknowledges, there is “some tension” between the two
opinions. Id. at 5. It is also not clear why Judge Niemeyer’s critique of Campbell—that it
did not need to address the applicability of Kisor at all—does not apply with even greater
force to his majority opinion in Moses. After all, both parties in Moses agreed that Kisor
applied to the Guidelines commentary. See Response Br. at 14–15; Reply Br. at 1–2.
At any rate, Campbell’s analysis of Kisor is hardly dicta. Campbell spends nearly
four pages discussing the impact of Kisor on the question at issue. See 22 F.4th at 444–47.
It does not, as Judge Niemeyer suggests, “rel[y] only on Stinson for its holding.” Niemeyer
Op. at 5. Rather, it expressly relies on Kisor to hammer home its conclusion. See Campbell,
22 F.4th at 444–45 (stating that Kisor “renders [the Court’s] conclusion indisputable”). So,
11 Campbell’s repeated citations to Kisor are hardly unnecessary flourishes; they are key
analytical building blocks that support its overall conclusion.
The fact that at least four judges of this Court unequivocally believe that Campbell
controls, while Judge Niemeyer alone seems to believe that Moses should control,
highlights the need for en banc review. Compare Motz Op. (joined by Judges King, Wynn,
and Thacker), and Wynn Op. (joined by Judges Motz, King, and Thacker), with Niemeyer
Op. If we are confused about which rule applies, how can we expect litigants to know
better?
In fact, there is evidence that Moses is already confusing lawmakers and the public.
See Michael Garcia, Cong. Rsch. Serv., LSB10690, Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers (Jan. 17–Jan. 23, 2022) (informing
Congress, incorrectly, that Moses created a circuit split on the applicability of Kisor to the
Guidelines commentary, when it could do no such thing due to Campbell); Bernie
Pazanowski, Long Sentence Upheld Despite Challenge to Guidelines Commentary,
Bloomberg Law (Jan. 19, 2022) (also erroneously reporting that Moses created a circuit
split). Our failure to resolve this confusion can only undermine the rule of law and
destabilize our circuit precedent.
Today’s failure to act also makes little sense as a matter of best practice. After all,
a careful gardener does not allow weeds to grow unchecked, trusting that they will be
shaded out by her taller, earlier-planted sprouts; she removes the weeds before they can
threaten the health of the plants she is trying to cultivate. Cf. McMellon, 387 F.3d at 334 &
n.2 (recognizing that while “the first case to decide the issue is the one that must be
12 followed,” an en banc rehearing can provide an avenue to “more quickly resolve” an “intra-
circuit conflict” when a later-decided case fails to follow earlier precedent); id. at 354
(Niemeyer, J., dissenting in part) (rejecting the en banc majority’s earliest-published-
opinion rule in part because “we can always resolve intra-circuit splits by en banc
rehearings”).
Judge Niemeyer suggests that any weed pulling here would be premature. Rather,
he contends, it would be “wise to postpone addressing the [tension between Stinson and
Kisor] until it is presented to us directly in a future case.” Niemeyer Op. at 6 (emphasis
added). However, Judge Niemeyer also notes that the tension between Stinson and Kisor
is the very “root of this case.” Id. at 3 (emphasis added). If that’s true, Moses would seem
to be the perfect vehicle to address the tension he is concerned about in an en banc
A proactive approach seems especially wise here, where the present case involves
an issue of exceptional importance. Moses did not just purport to interpret a single
subsection of the Guidelines commentary. Rather, it attempted to craft a meta-rule that
would govern our interpretation of the commentary writ large. See Moses, 23 F.4th at 352.
Because the Guidelines commentary plays a key role in criminal sentencing, Moses’s
putative rule could impact hundreds, if not thousands, of cases in the Fourth Circuit.
Sheer numbers aside, Rule 35 also explains that a “proceeding presents a question
of exceptional importance if it involves an issue on which the panel decision conflicts with
the authoritative decisions of other United States Courts of Appeals that have addressed
the issue.” Fed. R. App. P. 35(b)(1)(B). And Moses frankly acknowledged that its holding
13 departed from the law of the Third and Sixth Circuits. See Moses, 23 F.4th at 349 (citing
United States v. Nasir, 17 F.4th 459, 469–72 (3d Cir. 2021) (en banc), and United States v.
Riccardi, 989 F.3d 476, 484–86 (6th Cir. 2021)). So, Moses not only created an intra-
circuit split, but it also attempted to create an old-fashioned circuit split. That alone makes
it an exceptionally important case worthy of en banc review.
In sum, it would be hard to imagine a more suitable candidate for en banc rehearing.
Yet somehow the majority of my colleagues declined to grant a petition for such a
rehearing. Though I generally do not favor separate opinions on matters like this, I cannot
be associated with what I view as a serious departure from the purposes of Rule 35. So,
with great respect for my colleagues in the majority, I vote to grant rehearing en banc.