Normally, when everyone on the panel agrees that the defendant's conviction is just and proper, you simply affirm. Here's one of the exceptions to that rule.
The difficulty here is that there's circuit precedent that everyone on the panel agrees is both on point and also would require a reversal of the conviction, but everyone also agrees that this precedent is wrongly decided. So what do you do?
Judge Schroeder writes the majority opinion and says that this precedent has been undercut by subsequent Supreme Court authority, and hence that the panel is entitled to ignore/overrule it. Judge Randy Smith, by contrast, dissents, arguing that because the subsequent authority is far from clear, the panel has no authority to overrule circuit precedent.
It's an interesting -- and enlightening -- battle about both the normative and descriptive power of Ninth Circuit precedent. You definitely get two competing views here, and these views are especially helpful because both sides make their arguments forthrightly, with no hiding the ball or hidden agendas. So it's a good case.
Plus, as an aside, both authors make sure to include their own aphorisms. Judge Schroeder begins her opinion by saying: "This case illustrates the enduring truth of Ben Franklin’s sage observation that 'nothing is certain but death and taxes.'" While Judge Smith begins his dissent by saying: "In this case, I find myself between 'the proverbial rock and a hard place.'"
Let the battle of epigrams begin!
