Vargas-Amaya

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 03-50577 Plaintiff-Appellee, D.C. No. v.  CR 00-1471 JTM DANTE VARGAS-AMAYA, SD Cal. Defendant-Appellant.  ORDER

Filed May 25, 2005

Before: Thomas G. Nelson, A. Wallace Tashima, and Raymond C. Fisher, Circuit Judges.

Order; Dissent by Judge Callahan

ORDER

The panel has voted to deny the government’s petition for panel rehearing. Judge Fisher votes to deny the petition for rehearing en banc, and Judges T.G. Nelson and Tashima so recommend. A judge of the court requested a vote on whether to rehear the matter en banc, but the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc rehearing.

The petition for panel rehearing and the petition for rehear- ing en banc are DENIED.

5691 5692 UNITED STATES v. VARGAS-AMAYA CALLAHAN, Circuit Judge, with whom O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges, join, dissenting from denial of rehearing en banc:

I respectfully dissent from the denial of rehearing en banc. The panel’s decision is the…