A majority of the Judges of this Court in regular active service has voted for rehearing en banc of this case. Sixth Circuit rule 35(b) provides as follows:

The effect of the granting of a hearing en banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket sheet as a pending appeal.

Accordingly, it is ORDERED, that the previous decision and judgment of this court are vacated, the mandate is stayed, and this case is restored to the docket as a pending appeal.

The Clerk will direct the parties to file supplemental briefs and will schedule this case for oral argument.

MARTHA CRAIG DAUGHTREY, Circuit Judge. Petitioner Gary Duane Harris appeals from the district court’s denial of his second or successive 28 U.S.C. § 2255 motion to vacate, set aside, or correct a portion of the 480-month sentence he presently is serving. After pleading guilty to aiding and abetting second-degree murder, aiding and abetting attempted robbery, and aiding and abetting using or carrying a firearm during and in relation to a crime of violence, the district court sentenced Harris to concurrent sentences of 420 months and 180 months for the second-degree-murder and attempted-robbery convictions, respectively. The district court also imposed a consecutive 60-month sentence for the firearm conviction.

Harris argues that the consecutive 60-month sentence must be vacated because it is possible that the district court imposed that punishment pursuant to the unconstitutionally vague “residual clause” of 18 U.S.C. § 924(c)(3)(B). Furthermore, Harris insists that the 60-month sentence cannot be saved under the so-called “elements clause” of 18 U.S.C. § 924(c)(3)(A) because neither his conviction for aiding and abetting second-degree murder nor his conviction for aiding and abetting attempted robbery could have been considered a “crime of violence” under caselaw existing at the time of sentencing.

Although it is possible that Harris could demonstrate that his sentence is constitutionally suspect, our inquiry does not end there. To justify relief under § 2255, Harris must identify not only constitutional error but also harm that he suffered from that error. At best, Harris can show that the record of his sentencing is silent as to whether the district court relied upon § 924(c)(3)’s elements clause or residual clause when imposing punishment upon him. Thus, even if the record’s utter silence is sufficient to show that Harris’s sentence is constitutionally suspect, Harris still must establish that he could not have been sentenced to the consecutive 60-month prison term under § 924(c)(3)’s elements clause. Because the 18 U.S.C. § 2111 crime of aiding and abetting attempted robbery necessarily constitutes a crime of violence under the elements clause of 18 U.S.C. § 924(c)(3)(A), we affirm the judgment of the district court.

The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision. The petition then was circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.

Therefore, the petition is denied. Judge Readler would grant rehearing for the reasons stated in his original dissent and the one appended hereto.

JANE B. STRANCH, Circuit Judge. Roger Dean Gillispie was convicted of two rapes and spent over 20 years in prison before the Ohio courts vacated his convictions, finding meritorious his claims of failure to disclose exculpatory evidence and actual innocence. Gillispie now brings five § 1983 claims against Matthew Scott Moore, the police officer responsible for much of the investigation and the identification of Gillispie as the likely perpetrator. Gillispie alleges that Moore suppressed exculpatory evidence, arranged an unduly suggestive eyewitness identification procedure, fabricated inculpatory evidence, assisted in maliciously prosecuting him, and destroyed exculpatory evidence. Moore claims entitlement to qualified immunity on each count. In an exhaustive and well-reasoned order, the district court determined that each of Gillispie’s claims should proceed to trial. Moore appeals. Because Moore fails to abide by the basic, mandatory jurisdictional requirements governing appeals from denials of qualified immunity, we DISMISS the case for lack of jurisdiction.

The Defendant pleaded guilty to several drug offenses stemming from a 2006 arrest, and the trial court sentenced him to a fifteen-year sentence. The Defendant appealed, it was denied, and he filed multiple motions challenging his convictions. Most recently, he filed a motion to correct an illegal sentence or correct a clerical error, contending that he had not received 128 days of pretrial jail credits. The trial court denied the motion, finding that it did not have jurisdiction to amend his sentence and that any alleged error in calculating time should be directed to the Tennessee Department of Correction. It is from that judgment that the Defendant now appeals. After review, we affirm the trial court’s judgment.

A mother and father appeal the termination of their parental rights. The trial court concluded that there was clear and convincing evidence of two statutory grounds for termination of the mother’s rights and one statutory ground for the termination of the father’s parental rights. The trial court also concluded that there was clear and convincing evidence that termination of their parental rights was in their child’s best interest. After a thorough review, we affirm.

This appeal arises from the grant of an emergency conservatorship. Specifically, the appellant, as the wife of the individual at issue, contends that the trial court improperly granted the emergency conservatorship, alleging that there existed no legal basis to do so. She further contends that the assessment of attorney’s fees against her was improper. Finding no error, we affirm the judgment of the trial court.

A mother appeals the termination of her parental rights to her twins. The juvenile court terminated on grounds of abandonment by an incarcerated parent and substantial noncompliance with the permanency plans. The court also determined that termination was in her children’s best interest. Mother argues that she lacked notice of the grounds and consequences of abandonment and the procedures for terminating her rights. She also argues that the evidence of the grounds for terminating her parental rights and of her children’s best interests was less than clear and convincing. We conclude Mother waived her notice argument. And while we agree that the evidence of substantial noncompliance with the permanency plans was less than clear and convincing, clear and convincing evidence does support the ground of abandonment by an incarcerated parent and the court’s best interest determination. So we affirm termination of Mother’s parental rights.

A homeowner sued to stop a foreclosure on his home. Most of the defendants filed motions to dismiss, which the trial court orally granted. But before written orders of dismissal could be entered, the homeowner filed a notice of voluntary dismissal. The court then entered an order of voluntary dismissal without prejudice, as well as the orders of dismissal with prejudice. Claiming that the orders were inconsistent, the homeowner filed a post- judgment motion for reconciliation of conflicting orders. The court clarified that the order granting the voluntary dismissal without prejudice only applied to claims against defendants that did not file motions to dismiss. But the dismissals with prejudice applied to claims against defendants that did file such motions. Finding no error, we affirm.

Those interested in running for an elected office in the Tennessee Bar Association or becoming a TBA Delegate to the American Bar Association’s House of Delegates have until Feb. 15 to qualify for the 2022 ballot. To qualify, candidates must file a nominating petition with the executive director of the TBA by emailing barED@tnbar.org, or sending the document by mail to Executive Director, Tennessee Bar Association, 221 4th Ave. North, Suite 400, Nashville, 37219. Because of limitations brought about by the COVID-19 pandemic, scanned signatures can be collected and submitted electronically. The TBA’s website has more information on the election process, a candidate qualifying petition you can download and a list of available positions.