concurring.
I concur in the court’s interpretation of 18 U.S.C. § 3143(b), but write separately to address Judge Gibson’s dissent. The dissent finds fault with the majority’s interpretation of the 18 U.S.C. § 3143(b) requirement that a defendant must raise a “substantial question of law or fact likely to result in reversal or an order for new trial.” Rather than follow a two-part objective analysis of the statutory phrase, the dissent would interpret the provision literally, and rely on the “objective detachment and conscience of a district judge * * * ” to avoid the inherent subjectivity in the literal test. I respectfully must disagree. District judges have found a literal reading of the statute difficult to apply. See United States v. Miller, 753 F.2d 19, 22 (3rd Cir. 1985) (quoting the district judge’s observation that “the Act ‘practically means that the district judge has to determine that he has probably made an error in the decision that he has rendered in the lower court * * *.’ ”) (citation omitted).
More significantly, a subjective interpretation of the statute creates serious due process and other constitutional questions which are obviated under this court’s holding. I would find it extremely difficult to concur in the constitutionality of section 3143(b) if the dissenting view were the prevailing one.