concurring in the denial of rehearing en banc:1
Respectfully, I cannot join in Chief Judge Jacobs’ concurrence in this case as I believe it mistakenly asks the district court to apply the panel’s dissenting opinion, rather than the panel’s majority opinion. The nostra sponte en banc poll, predicated on the rationale set forth in the dissent, did not succeed. The majority opinion therefore stands. As pointed out in the majority opinion, the district court should, of course, take account of the panel dissent. But the decision of the panel is the law of the Circuit for this case on remand and for future cases, unless and until it is overruled by the Supreme Court or by this Court en banc.
Opinions dissenting from denial of rehearing en banc2 are not uncommon in this Circuit. They are nonetheless oddities. When such an opinion is filed, there is an extant panel decision resolving the appeal. The active judges declined to revisit that decision en banc. The panel decision is therefore the Court’s decision. Other judges may have views on the matter, but the case is not before them, and what they may say about it has as much force of law as if those views were published in a letter to the editor of their favorite local newspaper.
Yet the unsuccessful request for an en banc rehearing becomes an occasion for any active judge who disagrees with the panel to express a view on the case even though not called upon to decide it. By employing the simple tactic of calling for an en banc poll, active judges provide themselves with an opportunity to opine on a case that was never before them. This amounts to an exercise in free speech rather than an exercise of any judicial function.
Here, the ability of active judges to seek en banc review and then opine on a case on which they did not sit works particular mischief. Once the mandate issues, the panel will remand for resentencing, with an opinion that actively encourages the district court to pay due regard to the panel dissent. It strikes me as inappropriate for other members of the Court to add their views as to what the district court should do on remand. This case may return to this Court on a subsequent appeal. Judges who may rule on a case in the future should not express their views on the outcome of a future appeal before the district court even considers the issues on remand.
The panel’s majority opinion, as commented on by the panel dissent, provides the district court with ample guidance from this Court, rendering further advisory opinions from others unnecessary. Both Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), stand squarely for the proposition that the district court is in the best position to make decisions about sentencing. We follow the teachings of those cases best when *520we defer to the district court’s ample discretion. Having remanded to the district court, we should afford it an opportunity to undertake its task without further muddying of the waters.
. Judges Guido Calabresi and Robert D. Sack, both members of the panel majority, are now senior judges. As such, neither voted in the en banc poll nor can be expected to respond to the views expressed by non-panel judges.
. Chief Judge Jacobs "concurring” opinion is, in substance, a dissent from a portion of the views on the merits of the panel majority.