joins, concurring in the judgment.
In his response to the petition for rehearing in this case, Jamal Norris stated that he “agrees with the Government that the issue in this case was whether the Government’s withdrawal from what it terms an ‘executory’ plea agreement, prior to Norris’ entry of a guilty plea or its actual acceptance by the district court, violated the Due Process Clause.” I agree with Judge Gruender’s opinion that the Due Process Clause provides no authority for ordering specific performance of the plea agreement signed by the parties on September 5, 2003. Because Norris’s guilty plea was never accepted by the district court, the plea agreement standing alone was “a mere executory agreement,” which did not deprive Norris of “liberty or any other constitutionally protected interest.” Mabry v. Johnson, 467 U.S. 504, 507-08, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984).
Accepting that Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), extends to “cover the situation where the defendant has not yet entered the plea, but has relied on the bargain in such a way that a fair trial would no longer be possible,” Gov’t of the Virgin Islands v. Scotland, 614 F.2d 360, 365 (3d Cir.1980), I also concur with the plurality that the government has gained no unfair advantage, “such as by the use at trial of statements made during the course of the plea negotiations.” United States v. Wessels, 12 F.3d 746, 753 (8th Cir.1993). The district court may protect Norris’s constitutional rights by prohibiting any evidentiary use of statements made in the plea agreement or at the aborted plea hearing. Ante, at 1050; United States v. Coon, 805 F.2d 822, 825 (8th Cir.1986); United States v. Kettering, 861 F.2d 675, 678-80 (11th Cir.1988).
While Norris’s constitutional claim fails for these reasons, the several opinions filed today raise the question whether there exists a non-constitutional rule of federal common law that creates for Norris a right to specific performance of the plea agreement. None of the opinions explains the potential source or scope of the court’s authority to fashion common-law rules in this context. Whatever that authority may be, it may not be exercised to circumvent or conflict with the Federal Rules of Criminal Procedure, see Carlisle v. United States, 517 U.S. 416, 426, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996), and the suggestion of a common-law right to specific performance in this case must fail in light of Rule 11(d)(1).
Rule 11(d)(1) provides that a defendant “may withdraw a plea of guilty before the court accepts the plea, for any reason or no reason.” This rule necessarily implies that a defendant may withdraw from a plea agreement, as well as from a plea of guilty, at any time before the court accepts the plea. The rule further seems to imply that neither party is bound by a plea agreement until the guilty plea is accepted by the court, for the defendant’s promise at any earlier stage is illusory. Even if the rule leaves a gap that may legitimately be filled by the courts in defining the ability of the government to withdraw from an executory plea agreement, we should not formulate an unbalanced com*1054mon-law rule that binds the government to a plea agreement from which the defendant may withdraw for any reason or no reason.
Cases like United States v. DeWitt, 366 F.3d 667, 669 (8th Cir.2004), do apply an interstitial federal common law to provide for uniform federal interpretation of plea agreements that have been accepted by a district court. See United States v. Herrera, 928 F.2d 769, 773 (6th Cir.1991). They do so, however, for the purpose of determining the meaning of those agreements in order to enforce the substantive rule of law established by the Constitution and Santobello. These decisions do not support the wholesale adoption of general contract principles to govern plea agreements in criminal cases.
The decision in United States v. Young, 223 F.3d 905 (8th Cir.2000), likewise does not support such a broad proposition. The issue presented in Young was whether the defendant knowingly and voluntarily waived his rights to exclude evidence under Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6). Id. at 909. The district court had ruled that Young was not aware of the nature of his rights under those rules when he executed a written waiver (which was included in a plea agreement). Id. at 910. Waiver is a unilateral act, and our court held that “Young’s waiver of his plea-statement rights was knowing and voluntary.” Id. at 911. The opinion includes no discussion of a federal common law of general contract principles, and I would not read the opinion implicitly to make a definitive statement on an issue that was not raised. See Brecht v. Abrahamson, 507 U.S. 619, 630-31, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (holding that stare decisis not applicable unless issue was “squarely addressed” in prior decision); Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed. 411 (1925) (“Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents”); Union Elec. Co. v. United States, 363 F.3d 1292, 1297 (Fed. Cir.2004) (holding that implicit rejection of argument by prior panel is not binding circuit precedent); Indian Oasis-Baboquivari Unified School District No. W v. Kirk, 91 F.3d 1240, 1244 (9th Cir.1996) (“We have ... declined to give controlling weight to our own implicit holdings.”); Grant v. Shalala, 989 F.2d 1332, 1341 (3d Cir.1993); Getty Petroleum Corp. v. Bartco Petroleum Corp., 858 F.2d 103, 113 (2d Cir.1988) (“a sub silentio holding is not binding precedent”) (internal citation and quotation omitted); Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1288 (9th Cir.1985) (“[Ujnstated assumptions on non-litigated issues are not precedential holdings binding future decisions.”); cf. ante, at 1052 & n. 9 (basing analysis of circuit precedent on what prior panel “implicitly found”); post at 1058-59 (Melloy, J., dissenting).10
The parties in this case have not briefed whether there is a rule of federal common law (or constitutional law) that provides for specific enforcement of all agreements be*1055tween a United States Attorney and a defendant that contemplate “pre-plea performance” or that do not require acceptance by the district court. Cf. ante, at 1049-50, 1052-53. Such agreements, and withdrawals from such agreements by the defendant or the government, may arise in a variety of circumstances, e.g., Coon, 805 F.2d at 822-25, none of which is presented by Norris. Because a decision about such matters is unnecessary to resolution of this case, see ante, at 1049-50 n. 5, 1052 n. 9, I would refrain from broad pronouncements in those areas.
For these reasons, I concur in the judgment reversing the order of the district court.
. I do not “characterize Young purely as a waiver case ... because the court’s only authority to enforce the affidavit-for-release-on-bond bargain would have been an implicit use of federal common law.’’ Ante, at 1052 n. 9. I characterize Young as a waiver case because the only issue raised and decided was whether Young’s waiver of rights under the plea-statement rules was knowing and voluntary. I do not “disavow” anything in Young; I simply focus on the court's express holding, which said nothing about an “apparent use” of federal common law. Id. I defer consideration of the dicta set forth in Judge Gruen-der’s opinion to future cases in which the issues are presented and argued.