On third thought from the Third Circuit

Last week I noted here that the Third Circuit in its (unpublished) King decision dropped a footnote with (intriguing and questionable) Booker dicta indicating that post-Booker enhancements “must rely only upon conduct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.”  I was further intrigued, as detailed here, when the Third Circuit subsequently amended that footnote, but merely to fix a typo.

Giving this matter now a third thought, it seems that the Third Circuit is no longer comfortable with the substance of the footnote in King.  As indicated by this order, the Third Circuit has “hereby withdrawn and vacated” its opinion in King.  With King thus dethroned, it appears that the dicta in this footnote no longer reigns.