concurring:
We concur in Judge Tang’s opinion only because we are bound by the holding in United States v. Chatman, 869 F.2d 525 (9th Cir.1989). See Landreth v. Commissioner, 859 F.2d 643, 648 (9th Cir.1988) *313(absent en banc review or an intervening Supreme Court decision, a three judge panel’s decision is binding). We write separately to express our belief that Chatman was wrongly decided and to encourage en banc review of this case to correct the error.
Chatman holds that the term “burglary” in 18 U.S.C. § 924(e)(2)(B) should be interpreted under its common law definition to mean “the breaking and entering of the dwelling house of another, in the nighttime with the intent to commit a felony therein.” Chatman, 869 F.2d at 527. As Judge O’Scannlain ably explains in his dissent in Chatman, the majority’s holding precludes the use of a burglary conviction for enhancement purposes in every jurisdiction in the Ninth Circuit. That is true because none of the jurisdictions within this circuit have retained the common law definition of burglary. Moreover, we have closed the door to a prosecutor’s attempt to overcome Chatman by our rejection of individualized review of the underlying circumstances of a defendant’s prior crime. See United States v. Sherbondy, 865 F.2d 996, 1009-10 (9th Cir.1988) (adopting a categorical approach rather a fact-specific inquiry of the circumstances of the particular criminal occurrence). Thus, Chatman, in our view, improperly rewrites the law by eliminating the crime of burglary from the federal statute. See California v. Tahoe Regional Plan Agency, 766 F.2d 1308, 1314 (9th Cir.1985) (“a statute should not be construed in a way that renders words or phrases superfluous”).
One stated reason for the Chatman holding is that the panel sought to avoid “an unnecessary intercircuit conflict” with United States v. Headspeth, 852 F.2d 753 (4th Cir.1988). In fact, however, a conflict already existed. Prior to Chatman, several circuits had held that burglary for purposes of the federal statute is to be defined by state law. See United States v. Hill, 863 F.2d 1575, 1581-82 (11th Cir.1989) (rejecting the use of the common law definition of burglary and adopting state law definition); United States v. Dickerson, 857 F.2d 414, 419 (7th Cir.1988) (applying state definition of burglary even if non-violent crimes are thereby included for purposes of sentence enhancement), cert. denied, — U.S. -, 109 S.Ct. 1753, 104 L.Ed.2d 189 (1989); United States v. Portwood, 857 F.2d 1221, 1223-24 (8th Cir.1988) (“the statute says ‘burglary’ and we take that to mean ‘burglary,’ however a state may choose to define it”). Moreover, subsequent to Chatman, all appellate courts have rejected application of a common law definition of burglary for purposes of the Armed Career Criminal Act. See United States v. Patterson, 882 F.2d 595, 603 (1st Cir.1989) (adopting generic definition of burglary); United States v. Palmer, 871 F.2d 1202, 1208 (3d Cir.1989) (“We agree with the government that the term ‘burglary’ must be given the generic definition....”); United States v. Leonard, 868 F.2d 1393, 1399 (5th Cir.1989) (“We conclude that a conviction for a crime which the state denominates ‘burglary’ is a conviction for burglary within the meaning of the [ACCA]. ”); United States v. Taylor, 864 F.2d 625, 626-27 (8th Cir.1989) (applying state definition of burglary). Thus, Chatman managed to avoid only a conflict with the Fourth Circuit while aligning the Ninth Circuit against all other circuits to address the issue. We should reexamine our position.