In a rare decision by all 12 of its full-time judges, the Denver-based federal appeals court ruled in a lopsided vote on Friday that one of its members created a sentencing process for probation violators that was out of step with Congress’s intent.

The U.S. Court of Appeals for the 10th Circuit analyzed how federal trial judges should resentence criminal defendants who receive probation and then violate the terms. The case of Colorado defendant Malachi Mathias Moon Seals received an unusual “en banc” review by the full court after he and the government both argued that a recent precedent-setting decision by a panel of judges incorrectly outlined the resentencing process.

By 11-1, the full 10th Circuit agreed.

Judge Timothy M. Tymkovich of Colorado, in the majority’s Aug. 28 opinion, rejected the idea that trial judges must engage in a two-step process for resentencing probation violators, accounting separately for the underlying crime and the “breach of trust” for violating probation. Instead, judges must resentence defendants for their probation violation using the range relevant to the probation violation, but can also consider the range for the underlying offense when deciding on the appropriate punishment.

“In the decades before,” Tymkovich wrote, “we had no difficulty reviewing sentences for probation violations; the difficulties won’t start now.”

Judge Gregory A. Phillips of Wyoming, who authored the original panel decision adopting the two-step process, was the lone dissenter. He argued that the majority’s reasoning flew in the face of Congress’s intent and rewarded probation violators with more lenient sentences.

His prior opinion “measures separate conduct for separate punishments under separate sentencing tables,” Phillips wrote. “But the majority jettisons that for its own system, one that inexplicitly authorizes district courts to disregard the probation violator’s underlying offenses of conviction.”

In the federal appellate courts, the vast majority of cases are decided in three-judge panels. Occasionally, the courts will vote to have all judges hear a case en banc. Historically, the 10th Circuit receives around 190 requests per year, but grants fewer than one on average.

A key feature of en banc review is a circuit court’s ability to overrule prior precedents established in panel decisions, which are binding on the court itself.

Moon Seals’ attorney persuaded the 10th Circuit to review the 2022 opinion of United States v. Moore, which established the resentencing framework for probation violators that affected defendants like Moon Seals. In that 2-1 panel decision, Phillips, writing for himself and now-retired Senior Judge Stephanie K. Seymour, explained that a trial judge must reimpose a 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.

Some 10th Circuit judges quickly telegraphed that they had reservations about that two-step process and were willing to consider it in a future en banc case.

While the Moore case unfolded, Moon Seals pleaded guilty to numerous counts of sending threats to federal officials. Despite the sentencing range being 33 to 41 months in prison, both sides asked that Moon Seals be put on probation instead.

U.S. District Court Judge Charlotte N. Sweeney initially balked. But she understood Moon Seals’ longstanding brain injury played a role in his conduct, and begrudgingly imposed probation so his condition could be addressed out of custody. Moon Seals immediately resumed sending threats, amounting to a probation violation. 

Although the 10th Circuit had decided the Moore case, Sweeney did not follow the two-step procedure in resentencing Moon Seals. Instead, she appeared to believe she could resentence him under either the range for his original offenses or the range for a probation violation. Relying on the original range, Sweeney imposed 36 months in prison.

The 10th Circuit panel hearing Moon Seals’ appeal agreed Sweeney did not follow the procedure, but it upheld his sentence last October. Phillips, who authored the decision in Moon Seals’ case, defended his two-step resentencing process from Moore as fully supported by Congress’s legislative changes in the early 1990s.

His arguments did not ward off full-court review. After the 10th Circuit judges voted to rehear the case en banc, the government indicated it would not defend Phillips’ two-step process. The 10th Circuit appointed former Colorado solicitor general Frederick R. Yarger to make the argument for upholding Moore.

Moore “didn’t truly create a new rule. It formalizes what many conscientious courts across the country have effectively already been doing,” Yarger said during oral arguments. The two-step process “just makes sure that all the procedural boxes have been checked. That everyone can understand where the sentence came from.”

The government and the public defender’s office asked for the 10th Circuit to overrule Moore and adopt a resentencing process that imposes a sentence for the probation violation anchored by that corresponding range. The government, however, argued that trial judges should also be able to consider the sentencing range for the underlying crime.

The 10th Circuit’s majority agreed that a proper, one-step resentencing must look to the range for probation violations, and should also consider the range for the underlying crime. Tymkovich wrote that no other federal appeals court has adopted Phillips’ two-step process, and any benefit to defendants from eliminating separate sentences would not be as pronounced as in Moon Seals’ case.

“Moon Seals’s probation sentence is the outlier; it was an enormous bet on rehabilitation,” he wrote, adding that Sweeney would be within her rights to go outside the probationary range based upon the original range of imprisonment that Moon Seals faced.

“As with any variance, the court must explain its upward variance,” Tymkovich concluded, returning the case to Sweeney to resentence Moon Seals in line with the full court’s instructions.

Phillips, in dissent, called the majority’s procedure a “big, jagged chip of granite off this circuit’s previously smooth face of uniformity and proportionality for federal sentencings.” He argued that a single-step resentencing fails to meaningfully punish defendants for their underlying offense, or to keep it separate from the probation violation.

“So good-bye to real resentencings at which the court imposes imprisonment for the offense of conviction,” Phillips wrote. “And hello to un-resentencings at which defendants line up to accept freebie, zero-month sentences for their offenses of conviction.”

Calling Moon Seals a “death-threatening menace,” Phillips suggested the U.S. Supreme Court or the U.S. Sentencing Commission should step in to address the issue.

The case is United States v. Moon Seals.