Carl Jennings filed a petition for rehearing and John Stepp filed a petition for rehearing en banc of the court's opinion of May 8, 1996 affirming their convictions and sentences.
The petition for rehearing en banc having been circulated not only to the original panel members but also to all other active judges of this court, and no judge of this court having requested a vote on the suggestion for rehearing en banc, the petition for rehearing and the petition for rehearing en banc have been referred to the original panel.
The panel has further reviewed the petitions. After careful consideration, the panel concludes that it did not misapprehend or overlook any point of law or fact in its decision but that its clarity would be improved by the addition of the following footnote at the end of the last paragraph of Section II.D.
On remand, sentencing Jennings to the same term but without language of "upward departure," the District Court's judgment would reflect a total offense level of 34 as to all counts which, with a Criminal History Category III, would result in a maximum sentence of 235 months. Under U.S.S.G. § 5G1.2(b), the court would impose concurrent sentences of 235 months on each of counts 1, 2, 3, 5 and 6, and a concurrent sentence of 120 months on count 4.
Accordingly, the petitions are therefore DENIED.