Two Trump judges appointed to the 11th Circuit – Judges Newsom and Branch – voted in favor of a 7-4 decision by the full court to deny rehearing of a case where the dissenting judges claimed that an individual improperly received a more severe sentence. The majority also refused to have the full court review whether summary orders should be relied on in considering appeals from convictions.

In United States v. St. Hubert, Michael St. Hubert’s appeal of his conviction and sentence was based largely on the argument that his sentence could not be enhanced based on attempting to use force in commission of a crime, when such intent had not been proven. A panel of the 11th Circuit rejected his appeal, and the full court denied en banc rehearing of the case, including Judges Newsom and Branch. But four other judges made several strong arguments for full court reconsideration.

Initially, the dissenting judges pointed out that St. Hubert had improperly received an enhanced sentence for attempting to use force in committing a crime when, in fact, he had only been convicted of attempting a crime that could involve the use of force. As the dissenters explained, this is an important difference recognized by other courts.

In addition, the dissenters pointed out that the panel ruling had been based on summary orders (brief orders without accompanying legal analysis) focused on  whether a prisoner could receive a second or third opportunity to challenge a conviction years later. The panel ruling was not based on full decisions on the merits of substantive criminal law and related issues. The dissenters explained that this was contrary to other appellate courts, and improperly had become “a tool for this Court to limit the review of prison sentences on direct appeal.”