The background of the case is laid out in Laura's post from April last year (The en banc reviews keep coming!):
Though he only made three small sales of meth, Mr. Gibson pled guilty to conspiracy to distribute meth that involved fifty grams or more of methamphetamine. This triggered the ten-year mandatory minimum. Mr. Gibson made Alleyne arguments as well as Guideline arguments, both of which were rejected by the Sixth based on existing precedent. Judges Daughtrey, Rogers, and Cook were not entirely happy with the result. Judge Rogers wrote:
"The result in this case may appear unjust. Mandatory minimums for limited-amount co-conspirators do not serve the drug statute's underlying purpose of more severely punishing larger-amount drug dealers. Nonetheless, absent a change in our law from the en banc court, the Supreme Court, or Congress, we are bound by our precendents."
Judge Rogers also noted the Circuit split on the issue.Robert had noted in a comment to that article:
Three issues to watch with this case: (1) en banc review is rare, but all the more so in cases (such as this) where plain error review apparently applies; (2) Gibson received the mandatory statutory minimum for the offense to which he pled; and (3) the Government argued that further review was unnecessary because current prosecutorial guidelines prescribe charging an individualized drug quantity and seeking a jury instruction for a finding of an individualized drug quantity. ...Frustratingly, we don't get to know how the vote count went down, or why exactly the court was split on the case. But I have to imagine that the concerns Robert raised might have had something to do with it, so it would seem that this issue is still one we need to watch out for and preserve.