Whether a federal court of appeals may apply the exclusionary rule exception in the first instance on appeal and whether a federal court of appeals should remand for resentencing under a retroactive sentencing guidelines amendment

I. Whether a federal court of appeals may apply the exception to the exclusionary rule in the first instance on appeal or, instead, whether the appellate court should remand to the district court to decide whether the factually-based exception applies. II. Whether, under 28 U.S.C. § 2106, a federal court of appeals on direct appeal in a criminal case should remand to the district court to con-sider resentencing the defendant based on a retroactive amendment to the federal sentencing guidelines that lowers the de fendant’s sentencing range and that went into effect during the appellate process.