Justia Federal District Court Opinions

Gretchen C. F. Shappert, United States Attorney, Robert James Conrad, Jr., Douglas Scott Broyles, Assistant U.S. Attorney, Office of the U.S. Attorney, Charlotte, NC, Demetra Daniel Lambros, John F. DePue, Anthony Steven Murry, Martha Rubio, U.S. Department of Justice, Washington, DC, Kenneth Davis Bell, Mayer, Brown, Rowe & Maw, Charlotte, NC, for Plaintiff-Appellee.

James Patrick McLoughlin, Jr., James William Haldin, Moore & Van Allen, Charlotte, NC, Stanley Lewis Cohen, New York, NY, for Defendant-Appellant.

Nancy Chang, Shayana Devendra Kadidal, Center for Constitutional Rights, New York, NY, David Douglas Cole, Georgetown University Law Center, Washington, DC, for Amici Supporting Appellant.

ORDER

After oral argument was heard by a panel of judges, a majority of the judges in active service voted to hear this appeal en banc. The en banc court heard argument on the matter on August 2, 2004.

According to the vote of a majority of the en banc court constituted to hear this appeal, we affirm the judgment and hold that Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), does not operate to invalidate Hammoud's sentence under the federal Sentencing Guidelines. Therefore, district courts within the Fourth Circuit are hereby instructed to continue sentencing defendants in accordance with the guidelines, as was the practice before Blakely. In the interest of judicial economy, however, and pending a definitive ruling by the Supreme Court, we recommend that district courts within the Fourth Circuit also announce, at the time of sentencing, a sentence pursuant to 18 U.S.C.A. § 3553(a) (West 2000 & Supp.2004), treating the guidelines as advisory only.

Majority and dissenting opinions will follow in due course.

Entered at the direction of Chief Judge Wilkins, with the concurrence of the court.