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April 15, 2005

Third Circuit dicta fixed (to eliminate a typo)

Yesterday I noted here that the Third Circuit in its King decision dropped a footnote with (intriguing and questionable) Booker dicta indicating 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."   (In other words, the Third Circuit seemed to be adopting the remedy of the Booker remedial dissenters, as well as the remedy of the remedial majority.)

I was thus intrigued to see this order from the Third Circuit today amending that footnote, but the amendment merely fixed a typo (the absence of the word "doubt") and did not change the substance.  Thus, it appears the panel that dropped this footnote is comfortable with its substance.  Interesting.

April 15, 2005 at 11:03 PM | Permalink


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