Dissents from both vacatur of en banc order and the reinstatement of the panel holding.
Dissent: The regulation is outside the statute; if the government doesn't raise Chevron, the deference claim is waived; lenity counsels the reading of the statute to the contrary.
Dissent: Deference is an aspect of statutory interpretation, which is the function of the courts.
Dissent: Criminal laws are not subject to Chevron deference.