Havelock

Daniel L. Kaplan, Assistant Federal Public Defender, Phoenix, AZ, for the appellant.

Michael Thomas Morrissey, Assistant United States Attorney, Phoenix, AZ, for the appellee.

Before: ALEX KOZINSKI, Chief Judge, MARY M. SCHROEDER, BETTY B. FLETCHER, STEPHEN REINHARDT, KIM McLANE WARDLAW, RAYMOND C. FISHER, MARSHA S. BERZON, JOHNNIE B. RAWLINSON, CONSUELO M. CALLAHAN, SANDRA S. IKUTA, and N. RANDY SMITH, Circuit Judges.

Opinion by Judge B. FLETCHER; Concurrence by Judge N.R. SMITH; Partial Concurrence and Partial Dissent by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge WARDLAW; Dissent by Judge FISHER.

FLETCHER, B., delivered the opinion of the court, which is joined in full by Chief Judge KOZINSKI, Judge BERZON, Judge CALLAHAN, and Judge IKUTA. Parts I, II.A. and II.C. are joined by Judge SCHROEDER and Judge REINHARDT. Parts I, II.A. and II.B. are joined by Judge WARDLAW. Parts I and II.B. are joined by Judge FISHER and Judge N.R. SMITH. Chief Judge KOZINSKI and Judges SCHROEDER, B. FLETCHER, REINHARDT, WARDLAW, BERZON, CALLAHAN, IKUTA, and N.R. SMITH join in the result:

"In matters of statutory construction... it makes a great deal of difference whether…