                 FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                   No. 08-30125
                Plaintiff-Appellee,             D.C. No.
               v.                         4:05-cr-00167-SEH
PATRICIA BETTERMAN PAUL,                  District of Montana,
             Defendant-Appellant.              Great Falls
                                          ORDER DENYING
                                           SUA SPONTE
                                              CALL FOR
                                           REHEARING EN
                                               BANC;
                                           CONCURRENCE
                                           IN THE ORDER;
                                          DISSENT TO THE
                                              ORDER


                 Filed September 30, 2009

   Before: Stephen Reinhardt, Cynthia Holcomb Hall and
            Milan D. Smith, Jr., Circuit Judges.



                          ORDER

  A judge of this court sua sponte called for this case to be
reheard en banc. A vote was taken, and a majority of the
active judges of the court failed to vote for a rehearing en
banc. Fed. R. App. P. 35(f). The call for this case to be
reheard en banc is DENIED.



                           14037
14038                UNITED STATES v. PAUL
REINHARDT and M. SMITH, Circuit Judges, concurring in
the denial of rehearing en banc:

   Although this case presented “the question whether a dis-
trict court can disregard the spirit and express instructions of
an appellate court’s mandate to reconsider an unreasonable
sentence,” United States v. Paul, 561 F. 3d 970, 972 (9th Cir.
2009), the briefs of the parties filed in response to the Court’s
order of June 22, 2009 focused on whether Paul’s new 15-
month sentence was substantively unreasonable. The en banc
call failed. We stand by what we said in the opinion, whether
or not it was “one of our court’s most elegant,” and leave to
others whether it was “a masterpiece of craftsmanship.”
(O’Scannlain Dissenting Op. at 14041).



O’SCANNLAIN, Circuit Judge, dissenting from the denial of
rehearing en banc, joined by KLEINFELD, TALLMAN,
CALLAHAN and BEA, Circuit Judges:

   This case decides whether a district court violated a man-
date from the court of appeals. It does not decide whether
Paul’s sentence was substantively unreasonable, despite lan-
guage in the opinion that could mislead readers. I write sepa-
rately in an attempt to forestall the confusion that has already
arisen from the way in which the majority has chosen to draft
its disposition. I dissent for the narrow purpose of sending the
criminal defense bar this message: do not cite this case for the
proposition that Paul’s sentence was substantively unreason-
able.

                                I

   Patricia Paul worked as the Clerk of the Heart Butte School
District on the Blackfeet Indian Reservation in Montana. As
the school district suffered severe financial hardship in 2004,
                    UNITED STATES v. PAUL                14039
Paul, a salaried employee, wrote herself checks for “overtime
pay” to which she felt entitled.

   Paul was indicted for embezzlement and charged with vio-
lating 18 U.S.C. § 666(a)(1)(A). After a mistrial, she was
retried and convicted. The district court sentenced her to six-
teen months—within the advisory Sentencing Guidelines
range of ten to sixteen months.

   Paul appealed, challenging her conviction and sentence. In
a memorandum disposition, the panel affirmed Paul’s convic-
tion, but vacated and remanded for resentencing on the
grounds that her sentence was substantively unreasonable.
United States v. Paul, 239 F. App’x 353, 354 (9th Cir. 2007)
(unpublished) (Paul I) (“Paul’s 16-month sentence is unrea-
sonable.”). That unpublished case constituted the first, or one
of the first, times a federal appeals court had held a within-
Guidelines sentence substantively unreasonable.

   Before the district court resentenced Paul, the Supreme
Court decided Gall v. United States, 128 S. Ct. 586 (2007),
and Kimbrough v. United States, 552 U.S. 85 (2007). Gall and
Kimbrough established that “courts of appeals must review all
sentences—whether inside, just outside, or significantly out-
side the Guidelines range—under a deferential abuse-of-
discretion standard.” Gall, 128 S. Ct. at 591. Subsequently,
we decided United States v. Carty, 520 F.3d 984 (9th Cir.
2008) (en banc), which recognized the particularly deferential
standard of review required by the Supreme Court’s new sen-
tencing cases. See id. at 993.

   On remand, the district court carefully reviewed the facts
listed in Paul I and resentenced Paul to fifteen months—one
month less than the sixteen months this court declared unrea-
sonable in its 2007 memorandum disposition. On appeal, Paul
claimed that the district court violated the rule of mandate by
removing only one month from the original sentence.
14040                  UNITED STATES v. PAUL
   In a per curiam opinion, the panel majority agreed with
Paul, vacated the new sentence, and remanded to a different
judge for resentencing. United States v. Paul, 561 F.3d 970
(9th Cir. 2009) (Paul II). Judge Hall dissented on the grounds
that the panel’s mandate did not survive Gall and Kimbrough.1

                                   II

   Do not be misled: this is solely a rule-of-mandate case. The
per curiam opinion states that “[t]his case presents the ques-
tion whether a district court can disregard the spirit and
express instructions of an appellate court’s mandate to recon-
sider an unreasonable sentence.” Id. at 972. The opinion holds
that the district court disregarded the rule of mandate when
resentencing Paul, and reverses and remands to a different
judge for resentencing. Id. at 975. Thus, the opinion rests on
the question whether the district court violated the Paul I
mandate when resentencing Paul to a fifteen-month sentence,
and not on a conclusion that Paul’s new fifteen-month sen-
tence is substantively unreasonable.

   Some may try to use Paul II as a vehicle to cite the substan-
tive unreasonableness holding of Paul I. But Paul I, a memo-
randum disposition, is not precedential. See 9th Cir. R. 36-
3(a) (“Unpublished dispositions . . . are not precedent, except
when relevant under the doctrine of law of the case . . . .”).
Merely citing a memorandum disposition in an opinion does
not endow the unpublished disposition with precedential
force. Here, Paul I is relevant to Paul II only in accordance
with the law of the case doctrine. It is simply not precedential
for substantive unreasonableness.
  1
    Though it is not the principal purpose of this dissent, I agree with
Judge Hall’s dissent from the panel opinion that Paul I’s mandate did not
survive the Supreme Court’s intervening decisions in Gall and Kimbrough
and our decision in Carty. As Judge Hall aptly shows, Paul I’s approach,
which redetermines the sentence anew on appeal without deferring at all
to the district judge, is not consistent with those cases.
                         UNITED STATES v. PAUL                        14041
   I recognize that this opinion is not one of our court’s most
elegant. Despite its rule-of-mandate holding, the opinion con-
tains language suggesting that the district court abused its dis-
cretion on remand by imposing a substantively unreasonable
fifteen-month sentence. The majority declares, for example,
that “the basic tenet of our prior holding in Paul I—that this
is not a case that falls within the ‘heartland’ of cases to which
the Guidelines are applicable—remains good law.” Paul II,
561 F.3d at 974. The majority also quotes passages from its
2007 memorandum disposition at length. Id. at 973. Had the
majority intended deliberately to create ambiguity, this opin-
ion would have been a masterpiece of craftsmanship.2

   Because of such confusing language in the majority opin-
ion, some litigants have already tried to cast Paul II as a sen-
tencing case rather than a rule-of-mandate case; they are
mistaken. “[C]ases that do not actually analyze the issue . . .
and cases that erroneously rely on those cases for their
implicit assumptions” do not bind future panels. Guerrero v.
RJM Acquisitions LLC, 499 F.3d 926, 937 (9th Cir. 2007); see
also Estate of Magnin v. CIR, 184 F.3d 1074, 1077 (9th Cir.
1999) (“When a case assumes a point without discussion, the
case does not bind future panels.” (citations omitted)).
Because Paul II does not expressly analyze whether Paul’s
   2
     Contrary to the majority’s concurrence, the briefs of the parties filed
in response to the court’s order of June 22, 2009, did not focus “on
whether Paul’s new 15-month sentence was substantively unreasonable.”
Rather, they correctly focused on whether the district court flouted a man-
date from the court of appeals. See Appellant’s Br. in Satisfaction of
Court’s June 22, 2009 Order Regarding the Need for Rehearing En Banc
at 15 (arguing that the district court “exercise[d] . . . a prerogative it did
not have: to correct or re-determine matters determined by this Court in
a previous appeal”); Br. of Appellee United States in Resp. to the Court’s
Order of June 22, 2009 at 10 (“[T]he majority in Paul II never should have
relied on the mandate, which was cancelled or at least modified by inter-
vening authority from the Supreme Court.”). By distorting the positions
taken by the parties, the majority’s terse concurrence in response to this
dissent perpetuates unfortunate confusion. We should have gone en banc.
14042               UNITED STATES v. PAUL
sentence was reasonable, it is simply not precedential on that
issue.
                             PRINTED FOR
                   ADMINISTRATIVE OFFICE—U.S. COURTS
                BY THOMSON REUTERS/WEST—SAN FRANCISCO

The summary, which does not constitute a part of the opinion of the court, is copyrighted
                          © 2009 Thomson Reuters/West.
