I predict persistent confusion about the fact that three subsections of yesterdayвЂ™s opinion arenвЂ™t en banc. In my view, the Douglas approach is very much preferable to the approach taken in Nasir. For example, in the 2018 Douglas en banc, the court issued two separate decisions simultaneously-one en banc, deciding the en banc issues, and one by the original panel, deciding the remaining issues. That structure is different from how the court has handled this situation in the recent past. As noted, some sections are for the original panel, other sections for the en banc court. Second, I want to offer up my own two cents about how the court structured its decision. Both the majority and the dissenting opinions were strongly worded. The dissenters were Porter + Smith, Chagares, Hardiman, Shwartz, Bibas, and Phipps. The majority was Jordan + McKee, Ambro, Greenaway, Jr., Krause, Restrepo, Matey Scirica, and Rendell. the fifth issue, the Rehaif plain-error issue in II.E, is decided en banc too.All 16 judges join this part, and Judge Bibas also concurred separately to discuss lenity. Deciding it en banc just lets the court overrule a prior precedent.

the 4th issue, the career offender issue in II.D, is decided en banc, unanimously.TheyвЂ™re in an opinion thatвЂ™s captioned as an en banc opinion, but those 3 sections (A, B, and C of section II) are not en banc rulings. the first 3 are decided by the original panel only.But I want to focus on two more procedural points.ДЇirst, the opinion opens with an opaque footnote that makes it next to impossible to tell who joined what without reading all the opinions, so I want to clarify that. And the career-offender section contains an interesting discussion of administrative deference under Kisor & Auer. Substantively, itвЂ™s an important decision for crim-law practitioners, especially on career-offender sentences, Rehaif, and plain error. It was an en banc decision in United States v. And, yesterday, the Third Circuit issued an especially interesting one. While IвЂ™m not summarizing each case any more, I do aim to continue posting here about especially interesting ones. For those who miss the case write-ups, I apologize. Lawyer + blogger was one thing, but lawyer + blogger + full-time parent + stressed-out human was too much. Other factors contributed, but in the end they fell victim-truly one the least significant victims-of this awful pandemic. I was always a bit on the fence about whether my case summaries were worth all the effort, but this past May I finally gave it up, probably for good. For over six years, I summarized more or less every precedential opinion issued by the Third Circuit, usually the same day they issued.

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