concurring and dissenting:

The majority, after affirming the denial of appellants’ creative requests for relief by way of a writ of audita querela and pursuant to 18 U.S.C. § 3582 (c)(2) (modification of sentence), 1 misuses our equitable powers to recall the mandates in cases that became final over fifteen years ago and six years ago, respectively. I dissent because the majority misreads the factual record, *926 departs from controlling precedent and the positions taken by our sister circuits, and proposes a premise on which any defendant sentenced under the pre-Booker guidelines may seek to be re-sentenced.

I

Initially, it should be observed that there is nothing in the record of either of these cases to suggest any individual equities. As noted by the majority, at the initial sentencing hearings, Judge Bryan expressed his frustration with the lack of discretion afforded to district judges by the mandatory sentencing guidelines, (maj. op. at 924) But there is nothing to suggest that these appellants were different from any other persons sentenced under the guidelines. In fact, at oral argument, government counsel noted that when one of the appellants initially sought a downward departure, the district court denied the request. Indeed, the majority’s lengthy quote of Judge Bryan’s comments when he denied appellants relief in 2005 makes clear that Judge Bryan’s objections were to mandatory guidelines as such and does not suggest that appellants were in any way exceptional. 2 The critical point is not that mandatory guidelines did not produce overly long sentences, but that there is nothing in the record to distinguish appellants from all the other defendants sentenced under the mandatory sentencing guidelines by Judge Bryan.

II

There is no doubt that the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), “marked a major transformation in the law of federal criminal sentencing.” United States v. Mohamed, 459 F.3d 979, 984 (9th Cir.2006). Furthermore, we have held that Booker does not operate retroactively, and “does not apply to cases on collateral review where the conviction was final as of the date of Booker’s publication.” United States v. Cruz, 423 F.3d 1119, 1121 (9th Cir.2005). Both convictions at issue here were final years before the Supreme Court decided Booker . Thus, we should affirm the district court’s denial of relief because appellants are not entitled to relief under a writ of audita querela, not entitled to relief under 18 U.S.C. § 3582 (c)(2), and not entitled to any relief under Booker .

III

Although the majority basically determines that appellants are not entitled to relief on the grounds they raised, it attempts to avoid the consequences of its determination by finding that these appeals present “extraordinary circumstances” which justify a recall of the mandates. The majority recognizes that it needs to circumvent this court’s opinion which holds that Booker by itself does not justify a recall of the mandate. See United States v. King, 419 F.3d 1035, 1036 (9th Cir.2005). In attempting to allow appellants to be resentenced, the majority improperly expands the definition of “extraordinary circumstances” to a point at which it could be invoked by almost every person sentenced under the mandatory sentencing guidelines. This is contrary to the Supreme Court reiteration that recalls of mandate are limited to truly exceptional circumstances, Calderon v. Thompson, 523 U.S. 538, 549-50 , 118 S.Ct. 1489 , 140 L.Ed.2d 728 (1998), and contradicts our holdings in Cruz and King that Booker is not retroactive.

*927 A.

In Calderon , the Supreme Court held that we committed a grave abuse of discretion in recalling our mandate. Calderon, 523 U.S. at 542 , 118 S.Ct. 1489 . Although the Supreme Court’s concerns were partially based on the fact that the case was a state capital case, see id. at 553-59 , 118 S.Ct. 1489 , it first set forth the standard for an appellate court recalling its mandate. The Court accepted that we have an inherent power to recall our mandate, but noted:

Id. at 550, 118 S.Ct. 1489 . 3

B.

What then are the “extraordinary circumstances” that justify recalling the mandates in this case? They cannot arise out of the Supreme Court’s decision in Booker , because we have held that Booker does not create the “extraordinary circumstances” necessary to justify recalling a mandate. King, 419 F.3d at 1036 .

The majority, however, cites United States v. Crawford, 422 F.3d 1145 (9th Cir.2005), as holding that Booker “when combined with other extraordinary circumstances, justifies] recall of the mandate.” (maj. op. at 924) My quarrel is not with this reading of Crawford . Rather, I object to the majority’s expansion of the unique “extraordinary circumstances” present in Crawford into a justification that can be invoked by any person who was sentenced under the mandatory sentencing guidelines.

In Crawford , we found “extraordinary circumstances” to recall the mandate because (1) “the sentencing judge had expressed explicit reservations on the record about the sentence required under the previously mandatory Sentencing Guidelines,” and (2) “the Supreme Court’s decision in Blakely v. Washington, [ 542 U.S. 296 , 124 S.Ct. 2531 , 159 L.Ed.2d 403 (2004) ] ... foreshadowing its holding in ... Booker ... was rendered before the mandate issued.” Crawford, 422 F.3d at 1145-46 . The court further stated:

Id. at 1146 n. 2.

In addition, it is critical to recognize that in Crawford , the panel that had just decided Crawford’s direct appeal, recalled its own mandate. In fact, the motion to recall the mandate was made less than a month after the panel issued its memorandum disposition 4 and within weeks of the issuance of the court’s mandate. Thus, although the mandate had issued, Crawford’s direct challenge to his conviction and sentence had not been finally decided because the time for filing a petition for a writ of certiorari had not expired. 5 See SUP. CT. R. 13 (allowing 90 days from a circuit court’s decision for the filing of a petition for certiorari). In contrast here, appellants’ convictions and sentences were affirmed years ago by different panels. Moreover, the proposal that we recall our mandates is not raised in the appellants’ direct appeals, but in appeals from the district court’s denial of their successive collateral attacks on their sentences.

Our precedents, including Crawford , do not permit the recall of the mandates in the cases at bar because (1) although the district judge expressed his displeasure with mandatory sentencing guidelines, as previously noted, there are no other exceptional circumstances, and (2) the appellants had no direct appeal or collateral proceedings pending when Booker was decided.

The majority, however, excuses the lack of any extraordinary circumstances by commenting that the fact that appellants did not have any proceedings pending when Booker was decided was an “accident of timing.” (maj. op. at 924) This will not do. First, appellants’ direct appeals were exhausted years ago and their 2005 filings that led to these appeals came after they had unsuccessfully pursued a number of collateral challenges to their convictions and sentences. 6 Second, as noted by the district court, the appellants’ predicament was not just an “accident of timing” because the appellants could have argued, as did Booker, that the mandatory guidelines were unconstitutional. 7 Third, and related *929 to the first two points, the majority’s dismissal of timing eviscerates the distinctions courts have always made between direct appeals, collateral challenges, and successive collateral challenges. 8 It is not just an “accident of timing” that a defendant does not raise an issue on appeal or that a favorable change in the law comes only years after a defendant’s conviction becomes final.

The unreasonableness of the majority’s approach is also evident in its failure to identify what mandates it is recalling. The majority is not recalling the mandate in these appeals because no mandate has issued. Furthermore, as the majority agrees that the district court properly denied appellants any relief on their 2005 filings, staying the mandate in these appeals would not provide the appellants any relief. Mr. Tillitz was last before this court in February 2005, when we denied him authorization to file a successive § 2255 motion. Mr. Carrington was last before this court in December 2004, when we denied him a certificate of appealability. It appears that sometime after August 1996, this court affirmed the district court’s denial of Mr. Carrington’s first motion for relief under 28 U.S.C. § 2255 , and that in February 2003, this court dismissed Mr. Tillitz’s appeal from the district court’s denial of his first § 2255 motion. It is doubtful that recalling the mandates in any of these matters would provide appellants any relief. Thus, the majority probably intends to recall the mandates in Mr. Car-rington’s direct appeal which most likely issued in 1991 or 1992, and in Mr. Tillitz’s direct appeal that issued in 2001. And the majority’s reason for such truly extraordinary relief? Simply that the Supreme Court decided Booker in 2005, because, according to the majority, defendants’ failure to have any pending proceedings at that time was just an “accident of timing.” I believe that our decisions in Cruz, 423 F.3d at 1121 , and King, 419 F.3d at 1036 , preclude a three-judge panel of this court from adopting the majority’s logic.

C.

Moreover, I agree with the Sixth Circuit’s persuasive explanation in United States v. Saikaly, 424 F.3d 514 (6th Cir.2005), that Booker does not support the recall of mandates. That court reasoned:

Id. at 517-18 (footnotes omitted).

It follows that the majority’s purported finding of “extraordinary circumstances” should be seen for what it is, an effort to repudiate or circumvent our holdings that Booker is not retroactive. Cruz, 423 F.3d at 1121 ; King, 419 F.3d at 1036 . Indeed, the only additional factor mentioned by the majority is that the district judge was outspokenly critical of mandatory sentencing guidelines. But the retroactive application of Booker cannot turn on the degree to which the sentencing judge grimaced when sentencing under the mandatory sentencing guidelines. 9 Either Booker is retroactive or it is not. This is a matter of law. It would be unfair to countless defendants and to numerous trial judges to have a defendant’s right to possible relief from a new Supreme Court decision turn on the extent to which the trial judge grumbled while enforcing the law.

Accordingly, stripped of its facade of a finding of “extraordinax-y circumstances” the majority’s x-ecall of the mandates in effect applies Booker retroactively to grant relief to defendants whose convictions were final years before Booker was decided. I dissent because the majority’s approach cannot be squared with our opinions in Cruz and King , is inconsistent with the position taken by our sister circuits, and abuses our inherent authority to recall the mandate as a last resort to correct *931 “grave, unforeseen contingencies.” Calderon, 523 U.S. at 550 , 118 S.Ct. 1489 .

. I concur in the majority's conclusions that defendants “are not entitled to relief on collateral review, however it is labeled,” (maj. op. at 923) and that their sentences are not subject to modification under 18 U.S.C. § 3582 (c)(2).

. Just before the section cited to by the majority, Judge Bryan stated that the "sentences may have been appropriate at the time they were imposed, or they may not have been."

. In his dissent, Justice Souter agreed with the majority's description of the restricted availability of recalling a mandate. He commented:

Calderon, 523 U.S. at 569-70 , 118 S.Ct. 1489 (footnote omitted). The majority’s recall appears to be the type of “mechanism [used] to frustrate the limitations on second and successive habeas petitions” disapproved by Justice Souter.

. United States v. Crawford, 102 Fed.Appx. 91 (9th Cir.2004).

. The particular facts in Crawford suggest that it may be viewed as only a minimal extension of our policy allowing for limited remands on direct appeals to consider Booker claims. See United States v. Ameline, 409 F.3d 1073, 1074 (9th Cir.2005), and United States v. Cantrell, 433 F.3d 1269, 1278 (9th Cir.2006). Moreover, as the time for filing a petition for certiorari had not run, Crawford can be reconciled with our holding in Cruz that Booker "does not apply retroactively to convictions that became final prior to its publication.” Cruz, 423 F.3d at 1119 .

. The district court noted that after we denied Carrington relief on his direct appeal he filed a motion pursuant to 28 U.S.C. § 2255 in 1996, a second motion pursuant to § 2255 in 1999, and a petition for a writ of coram nobis in 2004, all of which were denied. The district court noted that following his unsuccessful appeal, Tillitz filed a motion pursuant to § 2255 in 2001, a petition for a writ of mandamus in 2003, and another motion pursuant to § 2255 in 2004, all of which were denied.

.In its November 5, 2005, order the district court noted:

. For example, if the existence or non-existence of pending challenges could be dismissed as an "accident of timing,” the court would not have to wrestle with issues such as whether a Sixth Amendment challenge based on a judge-made finding of a prior conviction had been preserved. See United States v. Beng-Salazar, 452 F.3d 1088, 1092-95 (9th Cir.2006).

. Would there be sufficient “extraordinary circumstances” under the majority’s approach if the trial judge failed to voice his or her objections at the particular defendant’s sentencing, but objected to mandatory sentencing guidelines when sentencing other defendants?