United States of America v. Ronald Gipson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
December 1, 2005
Before
Hon. Michael S. Kanne, Circuit Judge
Hon. Diane P. Wood, Circuit Judge
Hon. Diane S. Sykes, Circuit Judge
No. 05-1407
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
R ONALD G IPSON ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 04-CR-30061-01-WDS—William D. Stiehl, Judge.
____________
O R D E R
A sua sponte request for rehearing en banc was made
by an active member of the court and a vote was called
for on October 11, 2005. A majority of the active judges
voted to deny rehearing en banc.
Judge Ann Claire Williams dissented from the decision
not to rehear this case en banc and was joined in the
dissent by Judge Terence T. Evans. That dissent follows.
The request for rehearing en banc is D ENIED .

-- 1 of 2 --

2 No. 05-1407
W ILLIAMS , Circuit Judge, with whom E VANS , Circuit
Judge, joins, dissenting from the denial of rehearing en
banc. In this case, the panel rejected Gipson’s argument
that the disparity between the Guidelines’ recommended
sentences for cocaine base and powder is unreasonable.
I voted to rehear this case en banc, as I think it raises
several compelling issues important to our review for
“reasonableness” after United States v. Booker, 125 S. Ct.
738 (2005). First, this case raises the issue of the relation-
ship between our prior case law holding that the United
States Sentencing Guidelines’ disparity between cocaine
base and powder sentences is constitutional and the new
post-Booker reasonableness standard. Second, this case
would allow this court to consider the threshold for re-
butting the presumption of reasonableness that at-
taches to sentences within the Guidelines. Third, the
court could consider whether there are any provisions in the
Guidelines that are facially unreasonable in the post-
Booker world.
Although I recognize that recalling a mandate is not
a matter to be taken lightly, see Calderon v. Thompson,
523 U.S. 538 (1998), the circumstances of this case (the
opinion was converted from an unpublished order to a
published opinion after the mandate issued) convince me
that these issues are worthy of our full court’s attention.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-1-05

-- 2 of 2 --