The Denver-based federal appeals court took the unusual step earlier this month of appointing an attorney to independently argue a key issue in a criminal sentencing appeal after the government indicated it would not contest the defendant’s view of the law.

The case of Malachi Mathias Moon Seals out of Colorado was already in the uncommon position of receiving “en banc” review, meaning consideration by all judges on the U.S. Court of Appeals for the 10th Circuit. The original appellate opinion, like the vast majority of decisions, was issued by a three-judge panel until the circuit voted to initiate full-court review last month.

Moon Seals initially received a probationary sentence after pleading guilty to multiple federal offenses. He then immediately violated the terms of his probation, prompting a trial judge to impose a prison term.

In October, a 10th Circuit panel upheld Moon Seals’ new sentence, but acknowledged the trial judge did not follow the framework laid out in a 2022 opinion.

Under that precedent, United States v. Moore, sentencing a federal defendant anew after his probation violation must occur in two steps. First, a judge must reimpose the sentence for the underlying crime, without regard to events that occurred since the probation began. Second, the judge adds an increment to the sentence for the probation violation.

Since then, multiple 10th Circuit judges signaled their skepticism about the two-step process. Judge Gregory A. Phillips, who authored the Moore decision plus the original panel decision for Moon Seals, dedicated a concurring opinion in Moon Seals’ case to defending his interpretation of the sentencing law, potentially to ward off full-court review.

However, that attempt failed in January, when a majority of the judges agreed to examine his two-step sentencing procedure and possibly overrule it.

Then, on Feb. 2, the U.S. Department of Justice wrote to the 10th Circuit. While the government remains interested in defending Moon Seals’ sentence for other reasons, it “has determined that it will not defend Moore’s two-step approach,” explained attorney Ethan A. Sachs.

Three days later, the 12 judges who will be hearing the case issued an order stating that, to their understanding, the government was effectively siding with Moon Seals’ view of the two-step process. The court otherwise instructed the government to submit a brief on the other questions it posed about resentencing probation violators.

Finally, on Feb. 9, the 10th Circuit changed course. It announced that it was appointing Frederick R. Yarger, a former solicitor general of Colorado, to argue the propriety of the two-step framework as an “amicus curiae,” meaning “friend of the court.”

“The court has determined that the en banc proceedings in this matter would benefit from full adversarial presentation,” the 10th Circuit wrote. “Mr. Yarger is not appointed to represent any party to this appeal.”

The court added that it intends to hear oral arguments at its scheduled May session.

The case is United States v. Moon Seals.