Nobriga

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-10169 Plaintiff-Appellee, v.  D.C. No.

CR-03-00209-HG

FRED NOBRIGA,

OPINION

Defendant-Appellant.  Appeal from the United States District Court for the District of Hawaii Helen Gillmor, District Judge, Presiding

Argued and Submitted April 8, 2005 Submission Withdrawn January 3, 2006 Resubmitted December 29, 2006 Pasadena, California

Filed December 29, 2006

Before: Harry Pregerson,* Kim McLane Wardlaw, and Marsha S. Berzon, Circuit Judges.

Per Curiam Opinion

*Judge Harry Pregerson was drawn to replace Judge James M. Fitzger- ald, Senior United States District Judge for the District of Alaska, who sat by designation. Judge Pregerson has read the briefs, reviewed the record, and listened to the tape of oral argument held on April 8, 2005.

20057 UNITED STATES v. NOBRIGA 20059

COUNSEL

De Anna S. Dotson, Kapolei, Hawaii, for the defendant- appellant.

Edward H. Kubo, Jr., United States Attorney, and Wes Reber Porter, Assistant United States Attorney, District of Hawaii, Honolulu, Hawaii, for the…