United States v. Kelvin Mize

I respectfully dissent. The majority opinion is flawed in several respects, and I will highlight the most problematic areas here.

A. Reaching the Unpreserved Issue— Misconstrued Record & Case Law

As a preliminary matter, the majority misconstrues the record and the case law in their pursuit to reach the unpreserved issue with respect to James and Jackie. The majority’s assertion that the “issue has been briefed by both sides and discussed at oral argument” is misleading. Neither Jackie’s counsel nor James’s counsel even attended oral argument, and neither raised the issue of a constructive…