Ziegler

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-30177 Plaintiff-Appellee, D.C. No. v.  CR-03-00008-RFC District of Montana,

JEFFREY BRIAN ZIEGLER,

Defendant-Appellant. Butte

 ORDER

Filed June 21, 2007

Before: Diarmuid F. O’Scannlain, Barry G. Silverman, and Ronald M. Gould, Circuit Judges.

Order; Panel Concurrence; Dissent by Judge W. Fletcher; Dissent by Judge Kozinski

ORDER

A sua sponte call for a vote on rehearing this case en banc was made by an active judge of this court. The call failed to receive a majority of the votes of the nonrecused active judges. Fed. R. App. P. 35. The sua sponte en banc call is therefore rejected.

O’SCANNLAIN, SILVERMAN AND GOULD, Circuit Judges, concurring in the denial of rehearing en banc:

The court wisely denied rehearing this case en banc. We write separately only to counter the dissent’s unwarranted 7475 7476 UNITED STATES v. ZIEGLER contention that the panel has “inaccurate[ly]” and “incom- plete[ly]” described the record.

First, contrary to the dissent’s assertions, the record in the district court…