The panel granted a motion to rehear and deleted a portion of the June 27, 2014 initial opinion which stated in dicta that Heritage may have other means of relief should the feared lawsuits against Heritage be filed. The panel left intact the holding that there was insufficient proof that the nondebtor officers and directors release provision was essential and affirmed its rejection by the bankruptcy court.
Valdavinos appealed his federal sentence arguing his state drug dealing conviction was not a felony for the career criminal sentencing guidelines. The panel 2-1 affirmed. The majority held that the state conviction qualified as Valdavinos was subject to the mandatory 16 month term which is longer than one year. The fact that Valdavinos had a plea agreement capping his sentence at 12 months does not change the analysis as the statue, not the plea agreement, controls the characterization of the crime for federals sentencing purposes and in any event Valdavinos was on notice he was pleading to a drug crime with a potential 16 month sentence and the state court had the option of rejecting his plea. The dissent argued that the American criminal justice system incarcerates too many for too long and punishes minorities and illegal immigrants far worse than whites and citizens. Thus, on this open question the dissent would hold that because North Carolina law requires a sentencing judge to sentence within the range of the plea agreement it has accepted, the plea sentencing range, not eh statutory range should control. It also argued that the majority approach undermines state prosecutors and judges.
Nucor sought to file an interlocutory appeal of the denial of motion to decertify a class. The panel denied the motion holding that Nucor had 14 days to appeal the original certification order and did not do so. The later motions to decertify did not restart the 14 day clock as the class remained certified. Thus, the appeal was time barred.