Unpublished, yet enbancworthy?

A few months ago we wrote about an Eleventh Circuit unpublished decision affirming a major upward variance for a relatively minor crime (though committed by a defendant with a lengthy criminal history). The panel’s decision not to publish the decision seemed “unusual,” and we suggested that, because it was unpublished, “the likelihood of en banc review is greatly reduced, for there is little reason for the full court to undertake the arduous process of reviewing a decision that doesn’t bind it or lower courts.”

Perhaps that view was overstated. Last week Fifth Circuit Judge Jerry E. Smith, joined by three of his colleagues, dissented from the denial of rehearing en banc of an unpublished decision reversing a district court’s denial of habeas relief. To Judge Smith, the “panel majority’s obvious error cries out for correction.” In his view, the “opinion is enbancworthy because, even though unpublished, it infects our entire habeas jurisprudence.”

The defendant’s lawyers in the Eleventh Circuit case filed a petition for rehearing en banc. Today, however, the petition was denied in a one-line order. It simply wasn’t enbancworthy.

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In related news, the Eleventh Circuit last week affirmed the conviction and sentence of a former Rothstein Rosenfeldt Adler lawyer for her role in the Ponzi scheme. In affirming her 5-year sentence, Judge Linn, sitting by designation and writing for the court, ended the (unpublished) opinion this way:

The district court’s sentence of 60 months is also substantively reasonable. In this case, had there been no loss, the parties agree that the guidelines suggested a sentence of 8–14 months. The problem for Kitterman is that the guidelines are intended for normal cases and, for a number of reasons, her case is anything but. First, Kitterman impersonated an official of the Florida Bar. Second, as the district court explained, this case will put people on notice that if “they do a fraud, and at the time they do it, they don’t appreciate the consequences of that fraud, there will be consequences if they are apprehended.” Third, while it is perhaps impossible to estimate what value Kitterman ascribed to the Bar complaints, the district court was correct that “it would blatantly be wrong to say [the intended loss] had no value.” Thus, a zero loss here does not, as might normally be the case, suggest that Kitterman’s intent was less pernicious. Fourth, this case is unusual because, as the district court noted, Kitterman was a lawyer and should have appreciated that “what [she was] doing is wrong.” Fifth, Kitterman’s sentence is also justified by the fact that Steven Caputi—who posed as a banker to deceive investors but who also did not know about the Rothstein Ponzi scheme—received a similar sentence of five years. Finally, Kitterman’s sentence is significantly below the total statutory maximum of 60 years imprisonment for the three wire fraud convictions.