Carrington

ORDER

Judge Noonan and Judge Callahan vote to deny the petition for rehearing and Judge Pregerson votes to grant the petition for rehearing. The petition for rehearing is DENIED.

Judge Pregerson votes to grant the petition for rehearing en banc, and Judge Callahan votes to deny the petition for rehearing en banc. Judge Noonan recommends that the petition for rehearing en banc be denied. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on the petition. Federal Rule of Appellate Procedure 35. The petition for rehearing en banc is DENIED.

Judge Pregerson’s dissent to the panel’s September 11, 2007 opinion is amended to include the following footnote following the sentence “I agree that Cruz holds that Booker is not retroactive to cases on collateral review, but that is all that Cruz holds.” Carrington v. United States, 503 F.3d 888, 901 (9th Cir.2007):

Id. at 1702 (internal citation and quotation marks omitted).

With the addition of the above as footnote 3 in Judge Pre-gerson’s dissent, the footnotes that follow footnote 3 in the dissent are renumbered accordingly.

Judge Noonan’s concurrence to the panel’s…