United States v. Tyrone Davis

CHRISTEN, Circuit Judge,

joined by

THOMAS, Chief Judge, and TALLMAN, NGUYEN, and HURWITZ, Circuit Judges,

concurring:.

Freeman v. United States, 564 U.S. 522, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), addressed an issue of grave importance to Davis and to countless other prisoners in his position. The opinion issued today corrects an error in our circuit’s interpretation of Freeman, but it also represents a missed opportunity to straighten out our circuit’s inconsistent applications of Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).

Marks specifically directs lower courts…