Can a 3-judge panel decline to follow circuit precedent when it has been overturned by a decision of a higher court?

A three-judge panel must decline to follow circuit precedent when it has been, in effect, overturned by the decision of a higher court. In order to be controlling on the panel, a higher court's decision need not be identical to our precedent, but must instead undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). In cases of clear irreconcilability, a three-judge panel of this court ... should consider [itself] bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled. Id.