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April 25, 2005

King has returned to the Third Circuit

As detailed in this post, the Third Circuit's (unpublished) sentencing decision in King was dethroned last week: the Circuit withdrew and vacated its April 15 opinion in King, perhaps because of a notable and questionable footnote with Booker dicta stating that post-Booker enhancements "must rely only upon conduct admitted by the defendant or found by the fact finder based upon proof beyond a reasonable doubt."  (Here's my original post on King, and here is a follow-up from the Third Circuit Blog.)

Today I see that King is back — long live the King! — in an unpublished opinion available here.  Significantly, the curious footnote with questionable Booker dicta has been banished from the Kingdom, but the rest of the interesting opinion still remains.  And, not to be overlooked, the new version of King includes an intriguing new concurring opinion from Judge McKee, which opens with this paragraph:

I believe that the District Court properly applied the sophisticated means enhancement under the Guidelines.  However, I write separately because I am concerned that King may well be correct in arguing that his sentence resulted, at least partially, from the District Court's personal bias against tax offenders and that the court's sentence was driven by that policy rather than the individualized consideration mandated under 18 U.S.C. § 3553(a).

April 25, 2005 at 03:53 PM | Permalink

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Comments

Drat! Just filed a pre-sentencing memo in E.D.Pa. citing the original King and attempting to justify it, to my client's benefit! As Emily Litella (OBM) was wont to explain, "Never mind!"

Posted by: Peter G | Apr 26, 2005 10:00:57 AM

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