                                                                FILED: October 5, 2018

                                     PUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4037


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

ERICK JEMONTA GIBBS,

                    Defendant - Appellant.



WYNN, Circuit Judge, voting to redesignate the panel opinion as unpublished or vacate it
as moot:

      On July 16, 2018, a divided panel of this Court ruled that a district court did not

err in sentencing Defendant Erick Gibbs (“Defendant”) to 24 months’ imprisonment for

violating the terms of his supervised release, notwithstanding that the district court did

not address several of Defendant’s nonfrivolous arguments in favor of a downward

variance. United States v. Gibbs, 897 F.3d 199, 209 (4th Cir. 2018). In dissent, Chief

Judge Gregory asserted that the majority opinion conflicted with this Court’s earlier

decision in United States v. Slappy, 872 F.3d 202, 208 (4th Cir. 2017), which held that “a

district court, when imposing a revocation sentence, must address the parties’

nonfrivolous arguments in favor of a particular sentence, and if the court rejects those
arguments, it must explain why in a detailed-enough manner that this Court can

meaningfully consider the procedural reasonableness of the revocation sentence

imposed.” Thereafter, Defendant petitioned this Court to rehear his case en banc.

       But Defendant can get no meaningful relief from his petition to rehear because

Defendant is now released from prison. Accordingly, Defendant’s case is now moot, and

the panel opinion should be vacated “so as to prevent a decision, ‘unreviewable because

of mootness, from spawning any legal consequences.’” Int’l Refugee Assist. Proj. v.

Trump, 876 F.3d 116, 119 (4th Cir. 2017) (Niemeyer, J., dissenting) (quoting United

States v. Munsingwear, Inc., 340 U.S. 36, 41 (1950)). Indeed, because it is undisputed

that the underlying Gibbs panel opinion does not, and cannot, overrule the binding

precedent of Slappy, there isn’t even a reason to publish the underlying opinion in this

matter.

       In deciding to expedite the filing of the denial of Defendant’s petition to rehear en

banc, this Court took the unusual, but in my opinion welcomed, step of entering that

order before opinions supporting and dissenting from the order were prepared for filing.

This procedural change is especially needed in criminal cases in which the delay of this

Court in waiting for separate concurring and dissenting opinions can result in gross

injustice and unfairness to a defendant. That is precisely what happened in United States

v. Surratt (“Surratt II”), 855 F.3d 218 (4th Cir. 2017).

       Recall from Surratt, the inescapable conclusion that this Court’s failure to timely

issue opinions in an en banc proceeding led to, what this Court deemed, was the mooting

of a habeas petitioner’s appeal, thereby forcing the petitioner—and other similarly


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situated prisoners—to unnecessarily spend several more years in prison. Surratt pled

guilty to conspiracy to possess with intent to distribute more than 50 grams, but less than

150 grams, of crack cocaine. Id. at 222 (Wynn, J., dissenting). At the time Surratt was

first sentenced, a panel of this Court had incorrectly construed 21 U.S.C. § 841(b)(1),

thereby subjecting Surratt to a mandatory life sentence. Id. at 220. After we identified

and corrected our error, Surratt filed a successive habeas petition, seeking to correct his

errant sentence. Id. Notwithstanding that the government supported Surratt’s request for

resentencing, this Court appointed independent counsel to argue that Surratt could not

avail himself of 28 U.S.C. § 2255’s “savings clause” to challenge his (incorrect)

mandatory life sentence. Id. at 220, 224. On July 31, 2015, a sharply divided panel of

this Court agreed with the appointed counsel’s argument, and therefore denied Surratt

relief. United States v. Surratt (“Surratt I”), 797 F.3d 240, 253 (4th Cir. 2015), reh’g en

banc granted, Dec. 2, 2015.

       Surratt then petitioned this Court for en banc rehearing, which we granted on

December 2, 2015. Surratt II, 855 F.3d at 224 (Wynn, J., dissenting). On March 23,

2016, this Court reheard argument of Surratt’s appeal. Nearly 10 months later—and still

without a decision from this Court—President Obama commuted Surratt’s life sentence

to a 200-month term of imprisonment, a prison term still well in excess of Surratt’s then-

applicable range under the Guidelines.      Id. at 226.   Without being notified of the

commutation by either party, this Court independently learned of the commutation and

then directed the parties to address whether the commutation mooted Surratt’s habeas

petition. Id. at 225. On April 21, 2017—more than two years after this Court granted


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Surratt’s petition for rehearing en banc—this Court dismissed the action as moot,

notwithstanding that there was no dispute that if we vacated Surratt’s commuted

sentence, he would likely be released because his new sentence would be shorter than his

time-served. Id. at 226.

      Subsequently, a panel of this Court agreed with the position Surratt advanced in

his en banc rehearing petition. See United States v. Wheeler, 886 F.3d 415, 429 (4th Cir.

2018). And this Court declined to rehear Wheeler en banc, United States v. Wheeler, 734

F. App’x 892 (4th Cir. 2018) (mem.), suggesting that Surratt would have prevailed on en

banc rehearing had this Court not taken so long to resolve his appeal. Notably, this Court

stayed Wheeler’s appeal for several years while Surratt was pending—a stay which

ultimately was for naught as we failed to resolve Surratt’s case in a timely fashion—

illustrating how this Court’s delay prejudiced other wrongly sentenced prisoners as well.

      Surratt’s procedural history reinforces the extraordinary efforts this Court has

taken to keep the panel opinion in this case on the books. Put simply, in Surratt this

Court waited until the completion of all separate and dissenting opinions and thereby

materially disadvantaged both the prisoner in that case and other wrongly sentenced

prisoners. By contrast, here this Court eschews what has been, to date, the standard

approach and denies Defendant relief without waiting until all opinions are ready for

filing. This Court does so, apparently, for the sole reason of keeping in place the panel

majority’s opinion, which Chief Judge Gregory’s dissent asserts contradicts this Court’s

precedent in a manner that prejudices the interests of criminal defendants. Accordingly,

the common thread running through this Court’s starkly different approaches to resolving


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Surratt and Defendant’s appeals is that both efforts had the effect of prejudicing the

interests of criminal defendants. A legal system constitutionally structured to err in favor

of criminal defendants should not operate in such a fashion.

       To be sure, the panel opinion in this matter is inconsequential.      If, as the panel

majority maintains, Gibbs, 897 F.3d at 206 (majority op.), the opinion is consistent with

this Court’s opinion in Slappy, then it adds nothing to this Court’s precedent.           By

contrast, if the panel majority opinion conflicts with Slappy, as Chief Judge Gregory

asserts, id. at 209–12, then the majority opinion is without legal force because under

black-letter Circuit law Slappy controls. 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.”). Thus,

regardless of whether the panel majority or the dissent is correct as to whether the

majority opinion keeps faith with this Court’s precedent, the panel majority opinion here

is without legal effect. The most likely outcome of keeping the panel majority opinion on

the books is to confuse litigants as to this Court’s precedent.

       When a court—on its own initiative and without the request of either party—

diverges from its usual practice and takes action that disfavors certain litigants and favors

others, the public reasonably perceives that court as abandoning its proper role as

independent, neutral arbiter. But here, this Court’s decision to abandon its usual practice

and rule on Defendant’s petition without awaiting filing of concurring, separate, and

dissenting opinions, establishes the practice and opportunity to avoid the injustice that


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befell Raymond Surratt and so many others. At the least, this Court now establishes a

means to prohibit concurring, separate, and dissenting opinions from exercising a “pocket

veto” to delay or deny fairness and justice.




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