position untenable in the mind

position untenable in the mind

Blog Article

The Tenth Circuit panel began by pointing out that its Battle decision stood on shaky grounds. It had failed to fully take into account Apprendi and its progeny, decisions that called into question treating facts properly left to the jury as sentencing factors decided by the trial court judge. That failure made Battle’s position untenable in the mind of the Tenth Circuit panel. The panel, however, faced a further obstacle. A circuit court panel is ordinarily bound by circuit precedent until released by a decision en banc, that is, by a decision in which all the active judges in the circuit take part. The panel overcame the en banc requirement with a footnote: “This opinion has been circulated to all active members of this court, and it is our unanimous decision to overturn the conclusion articulated in Battle that 18 U.S.C. § 924(j) is a sentencing factor rather than a discrete crime.” สล็อต