United States v. Stacey C. Koon, Cross-Appellee. United States of America v. Laurence M. Powell, Cross-Appellee

with whom PREGERSON, WIGGINS, KOZINSKI, NOONAN, and HAWKINS, Circuit Judges, join, and with whom O’SCANNLAIN, T.G. NELSON, and KLEINFELD, Circuit Judges, join, except as to Part TV:

I dissent from the refusal to rehear this case en banc. While I agree that there is no prejudicial error that requires reversal of the convictions, I believe that the panel seriously erred in vacating the downward departures ordered by Judge Davies. In my opinion, the district court acted well within its discretion in sentencing the defendants to prison terms below the Guidelines range. Sergeant Koon and Officer…