United States v. Martin Templeton Stockdale

ORDER The Opinion filed November 20, 1997, and appearing at slip op. 13971 [129 F.3d 1066] is amended as follows: *768 At slip op. page 13977 [129 F.3d at 1069], at the end of the last sentence preceding the word “AFFIRMED,” add the following footnote: After we filed our opinion in this case, United States v. Stockdale, 129 F.3d 1066 (9th Cir.1997), counsel informed us that the Sixth Circuit had taken a contrary view, in United States v. Clark, 110 F.3d 15 (6th Cir.1997). Additionally, the Eighth Circuit has since disagreed with our view, in United States v. Mihm, 134 F.3d 1353 (8th Cir.1998). In our original opinion, we examined whether United States v. Mullanix, 99 F.3d 323 (9th Cir.1996), should be distinguished on its facts, and decided that it should not be, and we should follow its language, that “section 3553(f) does not apply retroactively to sentences imposed prior to its effective date.” Id. at 324. Unless we act en banc to overrule Mullanix, we must decide this case as we have. Judge Canby does not agree that Mulla-nix controls, and would grant a rehearing. With these amendments, a majority of the panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. Judge Canby would grant the petition for rehearing and recommends rehearing en banc.