dissenting.
I join the majority’s holdings on the sufficiency of the evidence and sentencing issues. Unlike the majority, however, I would remand this case because I believe that Gordon established a prima facie Bat-son violation.
In my opinion, an inference of racial discrimination is raised any time a prosecutor exercises a peremptory strike against a venireperson who is a member of a protected class. Some district courts currently require prosecutors to state a reason for such peremptory strikes; others do not. Counsel at oral argument noted that even within districts, judges differ in their approach to peremptory strikes.
In the interest of consistency and fairness, our court should establish a “bright line” rule requiring the prosecutor to state a reason for each peremptory strike of a venireperson in a protected class. Such a rule would be consistent with the letter and spirit of Batson, which noted that “peremptory challenges constitute a jury selection practice that permits ‘those to discriminate who are of a mind to discriminate.’ ” Batson, 476 U.S. at 96, 106 S.Ct. at 1723 (quoting Avery v. Georgia, 345 U.S. 559, 562, 73 S.Ct. 891, 892, 97 L.Ed. 1244 (1953)).
Consistent application of this rule by the district courts would not place an undue burden on the prosecutor. Counsel for the government stated at oral argument that because many district courts routinely require the prosecutor to state a reason for striking black venirepersons, he is always prepared to explain his reasons for making a peremptory strike.
Finally, employing this “bright line” rule would reduce the number of appeals to our court on this issue. It is entirely possible that the prosecutor in this case had valid reasons for striking both black venireper-sons. Had he stated those reasons, Gordon might not have appealed his conviction, and my dissent would not be necessary. Because the district court did not require the prosecutor to explain his peremptory strikes, I would remand this case for a hearing on the issue in order to permit the prosecutor to do so.