Amezcua-Vasquez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-50239 Plaintiff-Appellee, v.  D.C. No.

CR-06-02104-WQH

JAVIER AMEZCUA-VASQUEZ,

ORDER

Defendant-Appellant.  Filed November 10, 2009

Before: William C. Canby, Jr., Andrew J. Kleinfeld, and Jay S. Bybee, Circuit Judges.

Order; Dissent by Judge O’Scannlain

ORDER

A judge sua sponte requested a vote on whether to rehear this matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed R. App. P. 35.

The mandate shall issue forthwith.

15077 15078 UNITED STATES v. AMEZCUA-VASQUEZ O’SCANNLAIN, Circuit Judge, dissenting from the denial of rehearing en banc, joined by KOZINSKI, Chief Judge, and GOULD, TALLMAN, CALLAHAN, BEA, and N.R. SMITH, Circuit Judges:

This is the first published opinion in this circuit reversing a within-Guidelines sentence as substantively unreasonable. The panel reaches this unprecedented result by casting aside Supreme Court and Ninth Circuit precedent in three ways: first, by failing to apply the appropriate standard of…