At page 1348 Resolving conflicting circuit precedent regarding en banc review62 citing cases“where there are two opposing lines of authority, a panel may, with- out calling for en banc review, follow the rule which has 'suc- cessfully posed as the law of the circuit for long enough to be relied on.”
- United States v. Sundeep Dharni, 757 F.3d 1002 (9th Cir. 2014).published(the appropriate mechanism for resolving an irreconcilable conflict is an en banc decision)
- Baker ex rel. Mandatory Punitive Damages Class v. Hazelwood, 270 F.3d 1215 (9th Cir. 2001).published(Unless an alternative method is provided by rule of this court, ‘[a] panel faced with such a[n] [intra-circuit] conflict must call for en banc review, which the court will normally grant.’)
- Robert W. Carlson v. Brian Birkholz, No. 2:24-cv-08013 (C.D. Cal. Apr. 3, 2025).As Petitioner appears to have sought an extension timely, the court exercises its discretion and GRANTS 28 1 intended to give litigants an opportunity to run one version of their case past the 2 magistrate, then another past the district c…
- J. S. v. Eugene Sch. Dist. 4j, No. 23-35522 (9th Cir. Nov. 12, 2024).unpublishedServs., 863 F.2d 633 , 638-39 (9th Cir. 1988), overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992). 4.
- Curry v. Haynes, No. 3:22-cv-05493 (W.D. Wash. May 6, 2024).Servs., 863 F.2d 633, 638 (9th Cir. 1988) (finding that the 22 purpose of the Act would be frustrated by “allowing parties to litigate fully their case before the 23 magistrate and, if unsuccessful, to change their strategy and present a d…
- Becker v. State Farm Fire & Cas. Co., No. 2:20-cv-06023 (E.D.N.Y. Mar. 27, 2024).See, e.g., Paterson–Leitch Co. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 , 990-91 (1st Cir. 1988) (“an unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably rais…
- Edward Littlejohn v. Calif Dept. of State Hospitals, No. 2:22-cv-09223 (C.D. Cal. Aug. 7, 2023).(en 23 banc)
- Timothy Ray Baker v. F. Villalobos, No. 2:18-cv-02301 (C.D. Cal. Feb. 1, 2022).Plaintiff proffers no 3 explanation for his failure to raise this theory in his Opposition to Defendants’ 4 Motion nor has he provided any evidence or citation to the record to support the 5 assertion. “[A]llowing parties to litigate fully…
- Jack Roy v. Laborer's Local 737, No. 21-35103 (9th Cir. Dec. 16, 2021).unpublishedServs., 863 F.2d 633, 639 (9th Cir. 1988), overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992).
- Washington v. Gilmore, No. 2:17-cv-00988 (W.D. Pa. Feb. 23, 2021).Accord Ward v. United States, 208 F.3d 216 (Table), 2000 WL 282648 , at *1 (6th Cir.2000); Greenhow v. Sec'y of Health & Human Servs., 863 F.2d 633 , 638-39 (9th Cir.1988) (district court properly ruled that issues raised for the first tim…
Show 48 more citing cases
- Roy v. Laborer's Local 737, No. 3:18-cv-01695-YY (D. Or. Feb. 4, 2021).Greenhow v. Secretary of Health & Human Services, 863 F.2d 633 , 638–39 (9th Cir. 1988) (overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992).
- Gustavo Hernandez v. Neil McDowell, No. 5:17-cv-01786 (C.D. Cal. Oct. 14, 2020).We do not believe that the Magistrate Act was intended to give litigants an opportunity to run one version of their case past the magistrate, then another past the district court.”), overruled on other grounds by United States v. 27 | Hard…
- United States v. Muskett, 970 F.3d 1233 (10th Cir. 2020).publishedGreenhow v. Sec’y of Health & Human Servs., 863 F.2d 633, 636 (9th Cir. 1988) (citations omitted), overruled in part on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per curiam). 7 So the Ninth…
- Sundby v. Marquee Funding Grp., Inc., No. 3:19-cv-00390 (S.D. Cal. Apr. 6, 2020).The Ninth Circuit has warned that 15 “allowing parties to litigate fully their case before the magistrate and, if unsuccessful, to 16 change their strategy and present a different theory to the district court would frustrate the 17 purpose…
- Jara 223016 v. Ryan, No. 2:17-cv-01090 (D. Ariz. Sept. 26, 2019).We do not believe 20 that the Magistrates Act was intended to give litigants an opportunity to run one version of 21 their case past the magistrate, then another past the district court.”).4 Accord Williams v. 22 McNeil, 557 F.3d 1287, 129…
- United States v. Michael Torres, 869 F.3d 1089 (9th Cir. 2017).published Or, if the majority believes that this case is controlled by contradictory precedents which will ultimately need en banc review to sort out, Majority at 1106, then under our precedent we “must call for en banc review” sua sponte, United St…
- Burley v. Miller, 241 F. Supp. 3d 828 (E.D. Mich. 2017).publishedCo., 840 F.2d 985, 990-91 (1st Cir. 1988) (holding that “an unsuccessful party is not entitled as of right to de novo review ... of an argument never seasonably raised before the magistrate”); Greenhow v. Secretary of Health & Human Servs.…
- Roderick Go v. Eric Holder, Jr., 744 F.3d 604 (9th Cir. 2014).published In general, the “appropriate mechanism for resolving an irreconcilable conflict [between our decisions] is an en banc decision.” United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per curiam).
- Gonzalez v. Arizona, 649 F.3d 953 (9th Cir. 2010).publishedThat's because, like Washington IV's rule, a statement in an en banc opinion that's not necessary to resolve the merits of the case often "provides a supervisory function" to "three-judge panels and district courts.... [and] thus constitut…
- Maria Gonzalez v. State of Arizona, 624 F.3d 1162 (9th Cir. 2010).published That's because, like Washington TV’s rule, a statement in an en banc opinion that’s not necessary to resolve the merits of the case often "provides a supervisory function” to "three-judge panels and district courts---- [and] thus constitut…
- Vasquez v. Astrue, 572 F.3d 586 (9th Cir. 2009).published United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc) (per curiam).
- Williams v. McNeil, 557 F.3d 1287 (11th Cir. 2009).publishedThe Ninth Circuit noted that “allowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magist…
- Vasquez v. Astrue, 547 F.3d 1101 (9th Cir. 2008).published United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc) (per curiam).
- United States v. Esteban Hernandez-Castro, 473 F.3d 1004 (9th Cir. 2007).publishedUnited States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992).
- United States v. Hernandez-Castro, No. 06-10074 (9th Cir. Jan. 11, 2007).publishedUnited States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992).
- Kulvir Singh Barapind v. Jerry J. Enomoto, United States Marshal for the E. Dist. of California, 400 F.3d 744 (9th Cir. 2005).published Again, this holding, which we subsequently reaffirmed en banc, see United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc) (per curiam), would have been non-binding "dicta" by the dissent's definition.
- Barapind v. Enomoto, No. 02-16944 (9th Cir. Mar. 8, 2005).publishedAgain, this holding, which we subsequently reaffirmed en banc, see United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per curiam), would have been non-binding “dicta” by the dissent’s definition.
- Cole v. State of New Mexico, 58 F. App'x 825 (10th Cir. 2003).unpublishedWe conclude that, by failing to raise the issue in his initial response to the respondent’s motion to dismiss, Mr. Cole has waived the argument that the unavailability of his caseworker constituted cause for his failure to file a certiorar…
- Salim v. Lee, 202 F. Supp. 2d 1122 (C.D. Cal. 2002).published(an appellate court faced with an irreconcilable conflict must call for en banc review unless the prior decision can be distinguished)
- In Re: The Exxon Valdez, Grant Baker, as Representatives of the Mandatory Punitive Damages Class v. Joseph Hazelwood, & Exxon Corp. Exxon Shipping Co., in Re: The Exxon Valdez, Grant Baker, as Representatives of the Mandatory Punitive Damages Class v. Exxon Corp. Exxon Shipping Co., & Joseph Hazelwood, Daniel R. Calhoun Bradford J. Chisholm David P. Clarke Thomas S. McAllister Phillip G. McCrudden Michael J. McClenaghan Guy Piercey Hugh Wisner Grant C. Baker Larry L. Dooley Kim J. Ewers John W. Herschleb Kent Herschleb David B. Horne Michael J. Owecke Gerald E. Thorne George A. Gordaoff Old Harbor Native Corp. Timberline, Inc. Barbara Brown John Foges Jamie L. Halladay Charles McMahon Jennifer Briggs Terri Mast Mark T. Coles Fred Galicano Mike Hollerbeke Kathy Bryan Vincent Libed Art Huddleston Opinion Robert Love Roxane Villaueva Marcelo Rombaoa Scott Hulbert Brian Gillis Frank Michael Carlson Elenor McMullen Native Vill. of Larsen Bay Native Vill. of Chenega Bay v. Exxon Corp. Exxon Shipping Co. Joseph Hazelwood, 270 F.3d 1215 (9th Cir. 2001).publishedCo. v. Haslip, 499 U.S. 1 , 23 n.11 (1991). 61 See id. ("We are not persuaded, however, that the Due Process Clause requires [a clear and convincing standard]."). 62 16 U.S. 546 (1818). 63 See id. at 547 . 64 See id. at 547, 550 . 65 See i…
- Corbett v. Brill, 128 F. Supp. 2d 650 (D. Haw. 2000).publishedPetitioner raises his “presumed prejudice” argument for the first time in this appeal. 6 “Arguments raised for the first time on appeal have traditionally been held to be barred, absent exceptional circumstances or a convincing explanation…
- Herman Roberts v. Kenneth S. Apfel, Comm'r, Soc. Sec. Admin., 222 F.3d 466 (8th Cir. 2000).published See, e.g., Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (issues first raised in objections deemed waived); Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 638 (9th Cir. 1988) (Magistrates Act not “intended to give…
- Jackson v. Caton, 112 F.3d 516 (9th Cir. 1997).unpublishedGreenhow v. Secretary of Health & Human Serv., 863 F.2d 633, 638-39 (9th Cir.1988), overruled on other grounds, United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992).
- Raymond Simpson v. Lear Astronics Corp., United States Ex Rel. Raymond Simpson v. Lear Astronics Corp., 77 F.3d 1170 (9th Cir. 1996).publishedIn Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 635-36 (9th Cir.1988), overruled on other grounds, United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc) (per curiam), cert. denied, 507 U.S. 978 , 113 S.Ct…
- United States v. Stone (In re Stone), 6 F.3d 581 (9th Cir. 1993).published Citing Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 636 (9th Cir.1988), overruled by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc), cert. denied, — U.S. -, 113 S.Ct. 1429 , 122 L.Ed.2d 797 (9th Ci…
- Irwin Koff Darline Ruth Koff v. United States, 3 F.3d 1297 (9th Cir. 1993).published Neither do we have the power to “make [a] choice between two opposing lines of authority.” Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 636 (9th Cir.1988), overruled en banc, United States v. Hardesty, 977 F.2d 1347, 1348…
- United States v. Reshat Shabani, A/K/A Lee Shabani, 993 F.2d 1419 (9th Cir. 1993).published United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 1429 , 122 L.Ed.2d 797 (1993). 15 We do not believe that McCown controls the issue we must decide today.
- United States v. Edward Pisciotta, 990 F.2d 1264 (9th Cir. 1993).unpublished (No. 92-7383)
- United States v. Duane Cree, 988 F.2d 123 (9th Cir. 1993).unpublished (No. 92-7383)
- Gordon E. Powelson, Pers. Rep. of the Est. of Clydena M. Gross v. United States of Am., Acting by & Through Its Sec'y of the Treasury Irs, Gordon E. Powelson, an Individual Chicago Title Ins. Co. of Oregon, an Oregon Corp. v. United States of Am., Acting by & Through Its Sec'y of the Treasury & Its Internal Revenue Serv., 979 F.2d 141 (9th Cir. 1992).publishedCf. United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc) (per curiam) (en banc review required " 'unless the prior decisions [alleged to be in conflict] can be distinguished.' ") (quoting Atonio v. Wards Cove Packing Co.…
- Powelson v. United States ex rel. Sec'y of the Treasury, 979 F.2d 141 (9th Cir. 1992).publishedCf. United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc) (per curiam) (en banc review required “ ‘unless the prior decisions [alleged to be in conflict] can be distinguished.’ ”) (quoting Atonio v. Wards Cove Packing Co.…
- Gonzalo J. Castillo v. Larry Art Martinez, No. 2:21-cv-08736 (C.D. Cal. Jan. 24, 2024).See Greenhow v. 28 Secretary of Health & Human Services, 863 F.2d 633, 638 (9th Cir. 1988) (“[A]llowing parties to 1 litigate their case before the magistrate and, if unsuccessful, to change their strategy and present a 2 different theory…
- Gregory Bernard Lacy v. J. A. Lizarraga, No. 5:19-cv-00583 (C.D. Cal. Oct. 26, 2021).See Greenhow v. Secretary of Health & Human 2 Services, 863 F.2d 633, 638-39 (9th Cir. 1988), overruled on other grounds by United 3 States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (“We do not believe 4 that the Magistrat…
- Gerald Stephens v. Thomas Tolbert, 471 F.3d 1173 (11th Cir. 2006).published
- Rasmussen v. Ward, 98 F.3d 1350 (10th Cir. 1996).unpublished
- United States v. Jose Gonzalez-Fernandez, 5 F.3d 541 (9th Cir. 1993).published
- United States v. Michael Lee Neely, 38 F.3d 458 (9th Cir. 1994).published
- United States v. H. Wayne Hayes, Jr., 231 F.3d 1132 (9th Cir. 2000).published
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003).published
- In re Exxon Valdez, 490 F.3d 1066 (9th Cir. 2007).published
- In Re Pappas, 215 B.R. 646 (B.A.P. 2d Cir. 1998).published
- Schmidt v. Johnstone, 263 F. Supp. 2d 1219 (D. Ariz. 2003).published
- Baker v. Exxon Mobile Corp., 490 F.3d 1066 (9th Cir. 2007).published
- Farquhar v. Jones, 141 F. App'x 539 (9th Cir. 2005).unpublished
- Richard Taylor v. Josie Gastelo, No. 2:18-cv-01550 (C.D. Cal. Dec. 3, 2020).
- Pinder v. Byrnes, No. 3:16-cv-00742 (D. Nev. Aug. 5, 2020).
- Friedenberg v. United States, No. 6:18-cv-00177 (D. Or. Dec. 31, 2020).
- Safeco Ins. Co. of Am. v. Fid. Nat'l Title Ins. Co., No. 3:19-cv-05902 (W.D. Wash. Jan. 26, 2021).
At page 1349 Imposing consecutive federal and state sentences4 citing cases“We conclude that the better rule is stated by Thornton and our sister circuits.”
- United States v. David Lee Alexander, 990 F.2d 1261 (9th Cir. 1993).unpublished
- David Lee Alexander v. Larry F. Taylor, Warden, 21 F.3d 1111 (9th Cir. 1994).unpublished
- United States v. Raul Santollo-Lopez, 28 F.3d 110 (9th Cir. 1994).unpublished
- United States v. Tavizon, 1 F. App'x 722 (9th Cir. 2001).unpublished
Other citing cases
- Tattersalls LTD. v. Wiener, No. 3:17-cv-01125 (S.D. Cal. Oct. 22, 2020).
- Sherwin Brook v. J. McCormley, No. 19-17289 (9th Cir. Nov. 20, 2020).unpublished
- State of Washington Health Care Auth. v. Azar, No. 3:19-cv-06137 (W.D. Wash. Oct. 29, 2020).
- Khorenian, No. 2:23-cv-00205 (D. Or. May 22, 2026).
v.
Jude Somerset HARDESTY, Defendant-Appellant
Reporter's Syllabus editorial summary, not part of the Court's opinion
Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, Or., for defendant-appellant.
Baron C. Sheldahl, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon.
Before: WALLACE, Chief Judge, TANG, PREGERSON, ALARCON, POOLE, CANBY, NORRIS, BEEZER, HALL, BRUNETTI, and FERNANDEZ, Circuit Judges.
PER CURIAM:
Lead Opinion
Hardesty appeals from the denial of his motion to reduce his sentence pursuant to 28 U.S.C. § 2255 and former Federal Rule of Criminal Procedure 35(a). He was convicted in federal district court for possession of a sawed-off shotgun in violation of 26 U.S.C. §§ 5861(d), 5871 and sentenced to ten years’ imprisonment. The district court ordered that Hardesty’s sentence run consecutively to a state prison sentence that he was serving at the time of his federal conviction.
Hardesty filed a motion to correct the sentence. He argued before the district court that the consecutive sentence was illegal under this court’s decision in United States v. Terrovona, 785 F.2d 767, 769 (9th Cir.1986) (Terrovona), and United States v. Williams, 651 F.2d 644, 647 n. 2 (9th Cir.1981) (Williams).
The government opposed the motion relying on this court’s earlier decision in United States v. Thornton, 710 F.2d 513 (9th Cir.1983) {Thornton). The district court, after observing that the Terrovona opinion did not cite Thornton, denied the motion. The district court concluded that it was bound by Thornton on the ground that “when two panels reach different conclusions the earlier decision controls, unless the [circuit] court decides the question en banc, or a United States Supreme Court opinion reverses the earlier panel.” Unit[*1348] ed States v. Hardesty, No. CR-83-0134-OMP (D.Or. filed June 27, 1990) (citing United States v. Magana, 797 F.2d 777, 779 (9th Cir.1986); United States v. Maybusher, 735 F.2d 366, 371 n. 1 (9th Cir.1984)).
A majority of a three-judge panel of this court affirmed the denial of the motion to correct the sentence holding that it was free to apply Thornton, without calling for en bane review, notwithstanding that “Thornton and Terrovona are clearly in conflict.” United States v. Hardesty, 958 F.2d 910, 912 (9th Cir.1992) (Hardesty). In determining that it had the authority to proceed without an en banc call, the majority relied on Greenhow v. Secretary of Health & Human Services, 863 F.2d 633 (9th Cir.1988).
In his suggestion for rehearing en banc, Hardesty asserted that under the law of this circuit, the irreconcilable conflict between Thornton and Terrovona must be resolved by an en banc court. In Atonio v. Wards Cove Packing Co., 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), we held that “the appropriate mechanism for resolving an irreconcilable conflict is an en banc decision.” Id. at 1478-79. Unless an alternative method is provided by rule of this court, “[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 1479 (emphasis added). In Greenhow, a three-judge panel of this court held that where there are two opposing lines of authority, a panel may, without calling for en banc review, follow the rule which has “successfully posed as the law of the circuit for long enough to be relied upon.” 863 F.2d at 636. Greenhow did not cite our Atonio en banc decision. We therefore overrule Greenhow to the extent that it conflicts with Atonio.
Hardesty argues that the consecutive sentence was illegal and requests that his sentence be reduced for time served or, in the alternative, that probation be substituted for the federal sentence. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.
Hardesty argues that the district court improperly ordered his federal sentence to run consecutively to his previously imposed state sentence. Because Hardesty contends that his sentence is illegal as a matter of law, our review is de novo. United States v. Wills, 881 F.2d 823, 825 (9th Cir.1989).
Hardesty points out that in Terrovona we held that until November 1, 1987, a district court lacked the authority to order that a sentence be served either consecutively or concurrently. 785 F.2d at 770. Hardesty was sentenced in 1984. The government contends that consecutive sentences are lawful according to Thornton. In Thornton, we held that former 18 U.S.C. § 3568 did not limit the authority of judges to order that sentences be served consecutively. 710 F.2d at 516; see also United States v. O’Brien, 789 F.2d 1344, 1346 (9th Cir.1986) (O’Brien) (following Thornton).
We granted rehearing en banc to resolve the conflict between Thornton and Terrovona. Our prior cases and authority from other circuits counsel in favor of adopting the rule in Thornton. Consecutive sentencing was permitted by the law of this circuit as early as 1941. See Gunton v. Squier, 185 F.2d 470, 471 (9th Cir.1950) (approving consecutive sentence); Hayden v. Warden, 124 F.2d 514, 514-15 (9th Cir.1941) (same). In Gunton, we stated that
[i]t is a well recognized rule of law that a person who has violated the criminal statutes of both the Federal and State Government may not complain of the order in which he is tried or punished for such offenses. Each is a sentence unto itself, otherwise there would be no orderly procedure in handling cases of this kind between two sovereigns.
185 F.2d at 471. Since our restatement of this rule in Thornton, no appellate court has approved the Terrovona analysis. See, e.g., O’Brien, 789 F.2d at 1346. In addi[*1349]tion, eight of our sister circuits agree that federal district courts have the power to impose a sentence that commences after completion of an existing state sentence. See Harding v. United States, 851 F.2d 1305, 1306 (11th Cir.1988); Pinaud v. James, 851 F.2d 27, 30 (2d Cir.1988); United States v. Campisi, 622 F.2d 697, 699 (3d Cir.1980); Causey v. Civiletti, 621 F.2d 691, 694 (5th Cir.1980); Cox v. United States ex rel. Arron, 551 F.2d 1096, 1098 (7th Cir.1977); United States v. Lee, 500 F.2d 586, 587-88 (8th Cir.), cert. denied, 419 U.S. 1003, 95 S.Ct. 322, 42 L.Ed.2d 279 (1974); Anderson v. United States, 405 F.2d 492, 493 (10th Cir.), cert. denied, 394 U.S. 965, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969); Jervis v. United States, 382 F.2d 592, 593 (1st Cir.1967).
Terrovona, on the other hand, stands alone in failing to recognize the rule enunciated in Thornton as the law of the circuit. Terrovona relied on three cases addressing the question whether a district court could order concurrent sentences under former 18 U.S.C. § 3568. See Terrovona, 785 F.2d at 770; Williams, 651 F.2d 644; United States v. Segal, 549 F.2d 1293 (9th Cir.), cert. denied, 431 U.S. 919, 97 S.Ct. 2187, 53 L.Ed.2d 231 (1977); United States v. Myers, 451 F.2d 402 (9th Cir.1972). Of these cases, only Williams discussed the question of the district court’s power to impose consecutive sentences, and then only in dicta. Williams, 651 F.2d at 647 n. 2.
We conclude that the better rule is stated by Thornton and our sister circuits. In our en banc capacity, we reaffirm Thornton and overrule Terrovona to the extent that it is inconsistent with Thornton. The district court did not err in ordering Har-desty’s sentence to run consecutively to his undischarged state sentence.
Hardesty also argues that the district court abused its discretion in refusing to order an updated presentence report. We do not review this issue en banc and leave the panel opinion’s disposition of the question intact. Hardesty, 958 F.2d at 915-16.
AFFIRMED.
Dissent
dissenting:
I respectfully dissent because I believe that the position set forth in footnote 2 of my opinion in United States v. Williams, 651 F.2d 644, 647 n. 2 (9th Cir.1981), appropriately balances the interests of both the Attorney General and those of the district court. The Attorney General, through the Bureau of Prisons, has the discretion to designate the place of confinement. 18 U.S.C. § 4082; 28 C.F.R, § 0.96. Because this grant of authority precluded the District Court under 18 U.S.C. § 3568 from ordering that a federal sentence run concurrently with a state sentence, I believe it equally prevented the District Court from ordering a consecutive sentence. However, the District Court was free to recommend either situation.
Footnote 2 of Williams sets forth this position. The recommendation of the District Court was invariably followed by the Bureau of Prisons. I believe this approach best accommodated the interests of both the Bureau of Prisons and the District Court. In this way, the District Court accomplished what it wanted and the Attorney General retained the discretion afforded it under section 4082.
I am not persuaded by the majority’s argument that we should adopt the rule in United States v. Thornton, 710 F.2d 513 (9th Cir.1983), just because other circuits have done so. Ante at 1347. The footnote in Williams has been on the books for over a decade. As far as we know, District Courts in this circuit adhered to it until the Crime Control Act of 1984 became effective. See, e.g., United States v. Posey, 665 F.Supp. 848, 850 (C.D.Cal.1987) (noting that order of consecutive sentence was modified to reflect a recommendation to the Attorney General).
The approach in Williams has the appeal of consistency and balance. If the District Court could not order a concurrent sentence, it should not have been able to order a consecutive one. Otherwise, we would be giving the District Court the power to[*1350] make a sentence harsher, but not lighter. Accordingly, I dissent.