join, specially concurring:
The En Banc majority differs “only with [the] panel’s final decision not to issue the writ.” Majority opinion, 603 F.2d at 1145. I burden the reader and these pages with this special concurrence for two purposes. First, I wish to reiterate my own continued conviction that the panel opinion is correct in Parts I. and II.1 This purpose being accomplished in its statement, I write briefly to explain how I reconcile the panel opinion, which I authored, and the En Banc majority opinion, with which I concur.
The panel majority framed the analysis as follows:
To conclude, as we have, that the District Court exceeded its authority under Section 3651 and that mandamus is the appropriate remedy does not end the matter. It must be remembered that we deal here with one of the extraordinary writs. We are not duty-bound to issue the writ. The procedural issue further narrows, therefore, to whether we shall exercise our discretion to grant the petition. This we decline to do.
588 F.2d at 1128. After listing the several factors which, taken together, were found compelling reasons not to issue the writ, the panel majority simply concluded: “Therefore, we exercise our discretion to deny the Government’s petition for a writ of mandamus.’’ Id. at 1132. We made no effort at quantifying “our discretion.” We merely exercised it.
Today, the En Banc seeks to quantify “our discretion.” Couched in careful ambiguities, the En Banc majority opinion seeks to steer clear of the perceived Scylla and Charybdis of alternatives. The En Banc majority attempts to avoid either a holding that, under some circumstances, an appellate court has no discretion whatever and should issue the writ whenever the applicant is apparently entitled to it, or a holding that an appellate court has discretion and on these facts should have used its discretion to issue the writ. A middle course is proposed and adopted: when the writ is sought from a supervisory court to confine a trial court to its statutory jurisdiction, there is very little discretion. Thus, we embark on a seemingly endless, if not also aimless, voyage in an effort to define gradations in the amount of available discretion. This is indeed an historic journey, for in the Anglo-American history of the writ of mandamus this appears to be the maiden such voyage.
The language the En Banc majority uses to quantify and define the amount of discretion here shows how ill-charted are the waters which lie ahead:
[W]e hold that, when the writ of mandamus is sought from an appellate court to confine a trial court to a lawful exercise of its prescribed authority, the court should issue the writ almost as a matter of course.
Majority opinion, 603 F.2d at 1145 (emphasis supplied). Somehow, the En Banc majority seems to confuse what are deemed compelling reasons for granting mandamus petitions in particular situations with the entirely separate notion of narrowing the scope of discretion to issue the writ. That there is little doubt how discretion should be exercised ought not be taken as a lessening of the quantity of discretion otherwise available. This confusing equivocation is a repeated theme in the majority opinion:
The writ of mandamus is an order directing a public official or public body to *1154perform a duty exacted by law. It may be issued to compel compliance with a variety of legal duties by a host of officials and bodies. In this case the writ is sought from us as an appellate court for the purpose of confining a federal trial court to the exercise of its lawful authority. We agree with the panel that the correction of an illegal sentence is an extraordinary cause for which mandamus is available. However, examination of the authorities and careful consideration of the precise purpose for which the writ is here sought lead us to conclude that the panel assumed broader discretion than it actually had in deciding whether or not to issue the writ and that, whatever the ambit for judgment, the circumstances compelled issuance of the mandate.
The Supreme Court has repeatedly stated in general terms that issuance of a writ of mandamus lies in large part within the discretion of the court.
The scope of discretion is, however, circumscribed by the purpose for which the writ is sought. Under some circumstances the room for judgment is narrowly constrained.
Absent the availability of mandamus, the limitation imposed by congress on the sentencing latitude accorded the trial court would go unheeded. The assumption of broad discretion by an appellate court in deciding whether or not to issue mandamus would be almost equivalent to granting the trial court the statutory authority denied it by congress. While relatively few cases have considered the problem in terms of principle, the Supreme Court and other appellate courts have responded to the application for the writ in such circumstances almost as if the applicant had a right to its issuance.
The imposition of a sentence that is illegal is a manifest transgression. That an appellate court has the duty, with minimal margin for judgment, to correct an illegal sentence has been evident since the decision in Ex parte United States, 1916, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129.
These cases indicate that, if a district court exceeds the scope of its judicial authority, the aggrieved party should be granted the writ almost as a matter of right. . . . As in each of these prior cases presenting a similar petition, we here find no compelling justification for exercising such discretion as we have to deny the writ of mandamus.
Majority opinion passim (footnotes omitted).
The panel majority would have exercised, for the Court, its discretion to deny the petition. The En Banc majority, equivocation aside, exercises the Court’s discretion to grant the writ. This I can and must accept.
My vote as a member of the hearing panel was a prediction of how our Court would exercise its discretion, and nothing more pretentious.2 While for the reasons stated in the majority opinion I felt that the better exercise of discretion would have been against the extraordinary remedy in this case, 588 F.2d at 1128-32, I find it impossible to file a dissent here. The Court of Appeals for a particular Circuit is one court; it is not a collection of judges sitting individually or in threes as separate courts. When less than the full Court resolves issues, such resolution are for the Court and not by a court. How the Court exercises its discretion is the subject of a vote not a debate. The discretion should be exercised the way the majority of the Court votes. Exercises of discretion are not the same as questions of law. When only pure questions of law are presented, a disagreeing member of the Court may explain in dissent how the minority feels that the majority has incorrectly interpreted the law. Discretion is quite another matter. One who feels *1155that the Court has discretion cannot dissent from its exercise.
When this petition was considered by the panel, the panel majority could only predict how the Court would exercise its discretion. Now Part II. of the En Banc majority opinion is not debatable. Subscribed to and concurred in by a majority of the active members of this Court, it holds, beyond peradventure, that the exercise of the Court’s discretion is in favor of granting the writ. Although my prediction was incorrect, I am bound, now to concur.
. Neither Judge Goldberg, in his panel dissent, nor the En Banc majority has taken issue with Parts I. and II. See United States v. Denson, 588 F.2d 1112, 1133 (5th Cir.) (Goldberg, J„ dissenting), on rehearing en banc, 603 F.2d 1143, 1149.
. “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” O. W. Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 461 (1897).