In the

United States Court of Appeals

For the Seventh Circuit

No. 99-2796

United States of America,

Plaintiff-Appellant,

v.

Michael J. Tomasino,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 98 CR 965--Robert W. Gettleman, Judge.

On Petition for Rehearing and Rehearing En Banc.

Decided September 26, 2000

 Before Posner, Easterbrook, and Ripple, Circuit

Judges.

 Per Curiam. Our opinion in this case, 206 F.3d

739 (7th Cir. 2000), concludes that because the

1991 amendment to U.S.S.G. sec.2F1.1(b) may have

reflected confusion by the Sentencing Commission

about the extent of its discretion, Tomasino’s

sentence may not be enhanced under that

guideline. The penultimate paragraph of our

opinion invited the Commission to clarify its

understanding without the formality of amending

the guidelines or notes. We remanded the case for

resentencing "after giving the Commission a

reasonable opportunity to clarify its intentions

in promulgating U.S.S.G. sec.2F1.1(b)(7)(B)." 206

F.3d at 743.

 Contrary to our expectations, the Commission did

not welcome this opportunity. A letter sent to

the Solicitor General on April 26, 2000, and

attached to the United States’ petition for

rehearing, conveys the Commission’s belief that

our opinion "could cause the Commission to be

burdened by a stream of judicial requests for

clarification. Such a burden would impact

negatively on the ability of the Commission to

respond to legislative directives, resolve
circuit conflicts, and promulgate other

amendments pursuant to its mandate from

Congress." The United States’ petition for

rehearing observes that the Commission prefers to

limit itself to a legislative role:

The Commission is not charged with sentencing

individual defendants. Nor should it be in the

business of stating its views regarding the

meaning of the Guideline provisions in any form

other than through the promulgation process set

forth by statute. Much like a legislature, once

the Commission has promulgated its Guidelines and

amendments, courts must interpret them as well as

they can.

Given the jointly held view of the Sentencing

Commission and the Department of Justice that

guidelines and notes must speak for themselves,

we withdraw the final two paragraphs of our

opinion, which solicited the Commission’s views.

This was an invitation, not a command, and the

invitation has been declined not only for this

case but also for future cases.

 For the reasons stated elsewhere in our

original opinion, however, a majority of the

panel remains of the opinion that

sec.2F1.1(b)(7)(B) may have been based on a

misunderstanding and therefore does not support

enhanced punishment for Tomasino. Accordingly, we

grant the petition for rehearing to the extent it

objects to the remand, and we now affirm

Tomasino’s sentence. A majority of the panel has

voted to deny the petition for rehearing to the

extent it seeks any other modification of the

judgment. No judge in active service has called

for a vote on the petition for rehearing en banc,

which is denied.

 Easterbrook, Circuit Judge, dissenting from the

denial of rehearing. I am gratified to learn that

the Sentencing Commission is content with the

powers Congress gave it and does not seek to

evade statutory limits on its rule-creation and

rule-interpretation abilities. See 206 F.3d at

744-45 (dissenting from the panel’s original

handling of this subject). Withdrawing the

invitation is a sound step. Unfortunately,

however, the court follows the Commission only

part way. The Commission’s letter to the

Solicitor General also has this to say:

It is the Commission’s view that action by the

Commission should be sustained when it has acted

within its statutory authority. The Commission’s

ability to carry out its responsibilities under
the Sentencing Reform Act would be hampered if

clearly worded guideline provisions were not to

be given effect pending some further statement of

intent from the Commission. . . . [The court’s]

approach could also undermine uniform application

of the guidelines by encouraging individual

judges to construe guideline provisions narrowly

and to focus on legislative history rather than

on the guidelines themselves. In sum, this

precedent, if undisturbed, would be detrimental

to the operation of the Commission and to the

uniform application of the guidelines.

Indeed so. By departing from what the Commission

promulgated because they are unsure what the

Commissioners thought, my colleagues promote

uncertainty and do a serious disservice to the

statutory goal of predictability in sentencing.

We should fix this part of the decision, too, and

remand with instructions to sentence Tomasino

under the text of the existing guidelines.