Here's the panel's holding:
We hold that a defendant who unsuccessfully raised a career offender issue at both sentencing and on direct appeal can use a timely-filed first motion under 28 U.S.C. § 2255 to pursue the same issue when an intervening case from the Supreme Court validates his argument and applies retroactively. Under that intervening case, this defendant’s third degree Florida felony child abuse conviction no longer qualifies as a predicate crime of violence. He therefore is not properly treated as a career offender. We vacate the district court’s denial of his section 2255 motion and remand for resentencing.
Seems rather straight forward. But I think this case raises two important issues --
1) If the 11th Circuit is going to allow as many visiting judges as it allows, then if the case is heard en banc, the judges who sat on the panel should be permitted to hear the case en banc. Here, Judge Kravitz was permitted to sit en banc but decided not to. But the author of the opinion, Judge Hornby, cannot.
2) The 11th Circuit should hear more cases en banc where the government is successful, especially because there are so many important decisions being made where there is only one active judge on the panel.