concurring and dissenting.
I respectfully dissent from Part I of the majority opinion because I believe that, pursuant to Atonio v. Wards Cove Packing Co., Inc., 810 F.2d 1477 (9th Cir.1987) (en banc), cert. denied, 485 U.S. 989, 108 S.Ct. 1293, 99 L.Ed.2d 503 (1988), this panel must call for en banc review of the irreconcilable conflict in the law of this circuit regarding whether a district court had the authority, prior to November 1, 1987, to order a federal sentence to run consecutive to a previously imposed state sentence. I concur in Part II.
In Atonio, this court, sitting en banc, addressed the question regarding the “procedure a panel should follow when faced with an irreconcilable conflict between the holdings of controlling prior decisions of this court.” Id. at 1478. The en banc court held that “the appropriate mechanism for resolving an irreconcilable conflict is an en banc decision. A panel faced with such a conflict must call for en banc review, which the court will normally grant unless the prior decisions can be distinguished.” Id. at 1478-79 (emphasis added).
The majority concedes that “Thornton and Terrovona are clearly in conflict.” Majority Opinion (Maj.Op.) at 912. Notwithstanding Atonio’s unambiguous and mandatory language, however, the majority concludes that en banc review is not necessary in this case. The majority justifies this conclusion on two grounds. First, the majority concludes that Terrovona was “incorrectly decided.” Maj.Op. at 912. Second, the majority concludes that Congress undermined Terrovona by codifying the rule set forth in Thornton in the Crime Control Act of 1984, 18 U.S.C. § 3584(a). Neither one of these grounds creates an exception to the rule set forth in Atonio.
The majority argues persuasively that Terrovona should not be followed. Atonio does not permit a three-judge panel to resolve a conflict in the law of the circuit by choosing the rule that the panel considers correct. The en banc court in Atonio noted that the three-judge panel that initially heard the appeal chose between conflicting authorities by following the case which “expressed the 'correct view’ or, alternatively, because it was the decision ‘first in line.’ ” Atonio, 810 F.2d at 1478. We stated in Atonio that “[t]he panel’s approach did not resolve the broader question of how future panels should decide a case controlled by contradictory precedents.” Id. The majority’s summary of out-of-circuit authority and its analysis of the precedent relied on by Terrovona may well demonstrate that it was wrongly decided. Nevertheless, the law of this circuit, as explained in Atonio, requires that the decision to reject Terrovona and adopt Thornton be made by an en banc court. Because Terrovona and Thornton cannot be distinguished, this three-judge panel “must call for en banc review.” Id. at 1479.
The majority does not attempt to distinguish Thornton and Terrovona. Instead, it cites United States v. Whitehead, 896 *917F.2d 432 (9th Cir.), cert. denied, — U.S. -, 111 S.Ct. 342, 112 L.Ed.2d 306 (1990), and United States v. Sotelo-Murillo, 887 F.2d 176 (9th Cir.1989), in support of the proposition that an en banc call “is not required where, as here, the conflict may be reconciled or avoided.” Maj.Op. at 912. In both of these cases, however, it was unnecessary to choose between the conflicting authority because the outcome would be the same. That is not true in the instant matter. This court must determine whether the rule set forth in Thornton or in Terrovona is applicable.
In Whitehead, we concluded that en banc review to resolve an intra-circuit conflict was not required because the outcome of the case did not turn on which standard of review we applied to the denial of a proposed jury instruction. 896 F.2d at 434. In Sotelo-Murillo, a three-judge panel recognized a split in Ninth Circuit authority regarding the proper standard of review “may be resolved authoritatively only through en banc proceedings.” 887 F.2d at 179. En banc review was not sought by the panel because the result of the case did not turn on the standard of review. Id. Unlike Whitehead and Sotelo-Murillo, the present case cannot be decided without first resolving the conflict between Thornton and Terrovona.
To justify its failure to follow Atonio, the majority cites Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633 (9th Cir.1988), for the proposition that “a panel may follow the rule which has ‘successfully posed as the law of the circuit for long enough to be relied upon.’ ” Maj.Op. at 912 (quoting Greenhow, 863 F.2d at 636). In Greenhow, a three-judge panel of this court was asked to resolve an intra-circuit conflict as to whether a party’s failure to object to a magistrate’s report waives his right to appeal all issues. The court stated:
An intra-circuit conflict can only be resolved by the court en banc.... Until the en banc court is able to address the issue, we must make the unsatisfactory choice between two opposing lines of authority, neither of which has an unimpaired claim to being the law of the circuit.
Greenhow, 863 F.2d at 636. The three-judge panel then chose to follow one of the conflicting lines of authority in order to “avoid surprise and the unjust forfeiture of rights....” Id. Atonio was not cited or discussed in Greenhow, although Atonio had been the law of the circuit for one year. Greenhow does not represent an exception to Atonio. It merely demonstrates that another three-judge panel of this court erroneously overlooked or ignored the law of this circuit in our en banc decision in Atonio.
I am sympathetic with the majority’s reluctance to seek initial en banc consideration to resolve the conflict between Thornton and Terrovona because of its strongly-held view that Terrovona was wrongly decided. I fully recognize that en banc review may add months or even years to the shelf-life of a matter before this court. By choosing between Thornton and Terrovo-na and refusing to seek an en banc resolution of this conflict, however, the majority violates the law of this circuit as explicated in Atonio. The majority appears to believe that the mandatory language of Atonio is inapplicable when a three-judge panel concludes that a prior decision was wrongly decided. As noted above, the en banc court in Atonio instructed that a three-judge panel may not choose between conflicting intra-circuit authority by selecting what the judges believe to be the “correct” view. Atonio, 810 F.2d at 1478-79. Only another en banc court can create exceptions to Ato-nio ’s clear command.
The majority also concludes that it does not have to call for en banc review of the conflict between Thornton and Terrovona because “Congress has now codified the Thornton rule in the Comprehensive Crime Control Act of 1984, Pub.L. 98-473, Title II, c. II, § 212(a)(2), 98 Stat. 2000, and expressly granted judges authority to make these decisions.” Maj.Op. at 914.
Pursuant to 18 U.S.C. § 3584(a) the district court now has the authority to order a federal sentence to run consecutive to an existing state sentence. United States v. *918Wills, 881 F.2d 823, 826-27 (9th Cir.1989). Section 3584(a) did not become effective, however, until November 1, 1987, and is expressly “applicable only to offenses committed after the taking effect of [the] section.” Pub.L. No. 98-473, § 235(a)(1), as set forth in the note following 18 U.S.C. § 3551 (1988). Therefore, contrary to the majority’s conclusion, section 3584(a) has no impact on sentences imposed prior to November 1, 1987.
The enactment of section 3584 did not constitute an amendment or clarification of a preexisting statute that undermined the interpretation given to it by our court. In Landreth v. Commissioner Internal Revenue Service, 859 F.2d 643 (9th Cir.1988), a three-judge panel of this court ruled that it was not bound by Wehrly v. United States, 808 F.2d 1311 (9th Cir.1986), because the statute we interpreted in Wehrly had been amended. Landreth, 859 F.2d at 648. We held in Landreth that a three-judge panel of this court is not bound by earlier precedent from this circuit “in cases involving statutory interpretation where Congress has retroactively clarified the meaning of the statute at issue.” Id. In relying on Landreth, the majority fails to point out that in this matter Congress did not enact clarifying legislation to negate a construction by this court of the words of a statute.
Unlike the situation in Landreth, in this matter we are not asked to reconsider the application of a statute because of new language inserted by Congress since our earlier decision. In fact, Congress had not spoken on the power of the courts to order consecutive sentences until it adopted section 3584, after our decisions were published in Thornton and Terrovona.
The legislative history of section 3584 reveals that “[t]here are no provisions of current law covering the contents of this section. Existing law permits the imposition of either concurrent or consecutive sentences, but provides the courts with no statutory guidance in making the choice.” S.Rep. No. 225, 98th Cong., 2d sess., reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3309 (emphasis added). In Landreth, we were required to interpret and apply the statute as amended. In this matter, section 3584(a) is expressly inapplicable to the consecutive sentence imposed by the court because it was imposed prior to November 1, 1987.
In summary, I dissent because our en banc decision in Atonio mandates that an en banc court resolve the conflict in Thornton and Terrovona, regarding whether a district court had the authority to order a federal sentence to be served consecutive to an existing state sentence prior to November 1, 1987. Atonio precludes this panel from choosing between these cases. The Landreth exception is inapplicable because in enacting section 3584(a), Congress provided that it had no retroactive effect. Landreth would only be applicable if we were required to apply section 3584(a) to this matter. Congress has expressly prevented us from doing so.