Page:United States Reports 546.pdf/453

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546US1

242

Unit: $U17

[08-22-08 15:50:12] PAGES PGT: OPIN

BROWN v. SANDERS Breyer, J., dissenting

abolish the weighing/nonweighing distinction, and in light of the explanation of the kind of error at issue, I would remand this case and require the Ninth Circuit to reconsider its en­ tire decision in light of the considerations I have described.