This case should go en banc. Not because it's necessarily wrong on the merits. And not because the en banc court would do anything different than the panel did. It probably wouldn't.
But Judge Bybee is correct that prior Ninth Circuit precedent -- though somewhat unclear -- holds that the United States can waive a waiver issue by failing to assert (as they fail to assert here) that the defendant pled guilty unconditionally, and hence cannot appeal. Whereas Judge Beezer, writing for the majority, finds those prior cases distinguishable, when in fact they're really not. Those prior holdings addressed the merits of an appeal notwithstanding an unconditional guilty plea and held that the government can "waive a waiver". That precedent is inconsistent with the majority's holding here that an unconditional guilty plea is a jurisdictional bar to adjudication of the merits.
It'll be interesting to see what happens to this case in future stages, especially since it's fairly clear what the outcome on the merits will be (since even Justice Bybee concludes that, but for prior precedent, the majority opinion is correct). On the one hand, technically, the case should go en banc since the opinion is fairly clearly inconsistent with prior precedent. But, on the other hand, who is really motivated to call (or vote) for en banc review? Sure, the defendant, who has nothing to lose, so technically, his counsel should file. But, from an institutional perspective, criminal defendants in general would perhaps be best served not to call for a vote en banc, since we're fairly sure what the outcome will be (a pro-government ruling). Regardless, assuming the defendant files (as I imagine he would), which judges votes which way? The principled ones should probably vote for en banc review since the panel decision is, in fact, inconsistent with prior Ninth Circuit precedent. To think that only rules and doctrine play into such votes, however, and that voting doesn't take into account the likely result, however, would seem incredibly naive. Some judges who agree with the panel decision on the merits wouldn't want en banc review because they'd want that opinion to stand. Some judges who disagreed with the panel decision on the merits wouldn't want en banc review because they figure that that the outcome of that process would just be to affirm the panel's decision on the merits ("Better a crappy panel decision than a more entrenched, and equally crappy, en banc decision."). Some judges who agreed with the panel decision would perceive this same effect, however, and thereby vote for en banc review precisely in order to entrench this result. And some judges who disagreed with the panel decision o the merits would vote for review if only because there's a non-zero chance of having the en banc court reverse ("The risk of a crappy en banc decision as opposed to a crappy panel decision is outweighed by the admittedly slim prospects of a good decision from the en banc court.").
Too bad we don't get to find out -- in any formal manner -- how each of the various judges voted on an en banc call. 'Cause this one will be interesting.
I, by the way, would vote "Yes". Not for results-oriented reasons. But rather because it's the right thing to do.
