holding that a three-judge panel cannot overrule prior decisions, even if those decisions failed to address arguments regarding the effect of intervening authority
How later courts described this case
- holding that a three-judge panel cannot overrule prior decisions, even if those decisions failed to address arguments regarding the effect of intervening authority
- holding that a three-judge panel lacked authority to overrule decisions that failed to recognize an intervening amendment to a sentencing guideline
- reversing a three-judge panel for overruling binding circuit precedent that was not clearly irreconcilable with intervening higher authority.
- suggesting that a later panel may be bound in limited circumstances by an earlier panel’s silence
Written by the judges who cited it.
The opinion
ORDER
KOZINSKI, Chief Judge:
Upon the vote of a majority of nonrecused active judges, it is ordered that this *1136 case be reheard en banc pursuant to Circuit Rule 35-3. The case is submitted without oral argument. See Fed. R.App. P. 34(a)(2).
OPINION
PER CURIAM:
We adopt as our own the three-judge panel’s opinion in United States v. Contreras, 581 F.3d 1163 (9th Cir.2009), except that we do not agree that the three-judge panel had authority to overrule cases decided after the 1993 amendment to the Guidelines. We vacate that portion of the opinion starting with “Notwithstanding Willard or the 1993 amendments ...” 581 F.3d at 1167 , column 1, line 1, and ending with “Equally certain ... is the fact that,” 581 F.3d at 1168 , column 2, line 13, as well as the second to last paragraph, which says “We conclude that to the extent Hill ... overruled by the 1993 amendments to § 3B1.3’s commentary,” 581 F.3d at 1168— 69.
We overrule United States v. Peyton, 353 F.3d 1080, 1090-91 (9th Cir.2003); United States v. Brickey, 289 F.3d 1144, 1153-55 (9th Cir.2002); United States v. Hoskins, 282 F.3d 772, 778-79 (9th Cir.2002); United States v. Technic Servs., Inc., 314 F.3d 1031, 1048-49 (9th Cir.2002); United States v. Medrano, 241 F.3d 740, 746 (9th Cir.2001); United States v. Velez, 185 F.3d 1048, 1051 (9th Cir.1999); United States v. Isaacson, 155 F.3d 1083, 1084-86 (9th Cir.1998); United States v. Oplinger, 150 F.3d 1061, 1068-70 (9th Cir.1998); United States v. Hill, 915 F.2d 502, 506 (9th Cir.1990), and any of our other cases, to the extent they conflict with our interpretation of U.S.S.G. § 3B1.3.