United States of America v. Winston Mcghee

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Before Lynch, Chief Judge, Boudin and Howard, Circuit Judges.

Winston McGhee was convicted of drug crimes committed in July 2006 and at sentencing determined to be a career offender, U.S.S.G. _ 4B1.1 (2008), based in part on a prior state youthful offender adjudication. On appeal, we affirmed both the conviction and the resulting sentence, United States v. McGhee, 627 F.3d 454, 461 (1st Cir. 2010), noting that the career offender designation was compelled by United States v. Torres, 541 F.3d 48 (1st Cir. 2008), cert. denied, 129 S. Ct. 1987 (2009).

McGhee then petitioned for panel rehearing and rehearing en banc to challenge Torres. The government then conceded that Torres’ holding was incorrect, but it defended McGhee’s sentence on other grounds. After consulting with the en banc judges, this panel granted panel rehearing to reconsider Torres ourselves–a practice occasionally used in this circuit in special circumstances*fn1 –the en banc request then being dismissed as moot.

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