Yesterday, Tuesday December 12th, the US Court of Appeals for the Third Circuit denied the appeal in United States v. Mark Jordan. To do so, the Court had to expressly cast aside an approach required by rasoning of prior circuit precedent and create a new rule of statutory construction when applying the legal framework used in determining whether certain offense codes proscribe a “crime of violence” under federal law. The Court also expressly refused to consider one of our strongest arguments on the grounds of stare decisis– adherence to precedent and standing by issues already decided-even though no circuit decision has ever before addressed the issue we raised. Rather, the concern is that were the Court to now address the issue, doing so would necessarily lead to a legal conclusion that is contrary to the ruling of a prior panel that had previously held in favor of the government.
In light of the conflicting intra-circuit decisions and the court’s refusal to address arguably our strongest issue, we will very likely ask the Third Circuit to reconsider the appeal en banc, meaning a hearing and decision by the majority of the active judges on the court. It is a procedural very rarely granted, but this is certainly the type of case and decision that begs for en banc reconsideration.
A link to the decision follows.https://www2.ca3.uscourts.gov/opinarch/222153p.pdf?fbclid=IwAR2uMXHpLb_PRf_7dQwz_nsKAQr0KSNe2EBZEhT0ki_jxWjqCUhBAlBW3Gk_aem_AadMtQcBD1VZQxJ7z227BVuSQ89EiYKzDCEuJZFtnNh7AmuT6RpuTNPaUybgp3xYslM