Burdeau

concurring in the order denying rehearing en banc, with whom BOOCHEVER, Senior Circuit Judge, joins with respect to the order denying rehearing en banc:

As the dissent from our denial of taking this case en banc notes, this is the third recent occasion on which the court has *1092 denied (or rejected) taldng a case en banc merely to “correct” statements in opinions, as opposed to their holdings or judgments. And for sound reason.

The criteria for taking a case en banc are clear and well-established — either necessity “to secure or maintain uniformity of the court’s decisions,” or to decide “a question of exceptional importance.” Fed. R.App. P. 35(a)(1) and (2) (emphasis added). 1 See, e.g., Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478-79 (9th Cir.1987) (en banc); United States v. Wylie, 625 F.2d 1371 , 1378 n. 10 (9th Cir.1980); see generally United States v. Aguon, 851 F.2d 1158, 1172, 1176 (9th Cir.1988) (Reinhardt, J., concurring; Wallace, J., concurring and dissenting). And that is what en banc proceedings should be reserved for — to decide cases, not to edit statements in opinions. As the Supreme Court said long ago, “[tjhis Court, however, reviews judgments, not…

dissenting:

For the third time in six months, a panel of this court has offered unsolicited advice to the other branches of government. Dissents in the two previous cases pointed out the impropriety of using a majority opinion to deliver a lecture to the political branches. See United States v. Harris, 165 F.3d 1277 (9th Cir.1999) (Kozinski, J., dissenting from the order rejecting the suggestion for rehearing en banc); United States v. Mussari, 168 F.3d 1141 (9th Cir.1999) (Kozinski, J., dissenting from the order rejecting the suggestion for rehearing en banc). Bad as the earlier cases were, the opinion here breaks dangerous new ground in two ways.

First, rather than merely giving advice to the legislative branch on how it should resolve broad questions of sentencing policy, see United States v. Harris, 154 F.3d 1082, 1085 (9th Cir.1998), or to the Executive Branch on the future use of its prose-cutorial discretion, see United States v. Mussari, 152 F.3d 1156, 1159 (9th Cir.1998), the majority here tries to buffalo the Department of Justice into changing its position in the very case now before the court. See United States v. Burdeau, 168 F.3d 352, 359 (9th Cir.1999). After…

ORDER; Concurrence by Judge TASIMA; Dissent by Judge KOZINSKI.

ORDER

The panel has voted to deny Appellant’s Petition for Rehearing.

A sua sponte call for a vote on rehearing this case en banc was made by an active judge of this court. The call failed to receive a majority of the votes of the non-recused active judges. Fed. R.App. P. 35.

The petition for rehearing is denied and the sua sponte en banc call is rejected.