                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                     No. 04-10169
                Plaintiff-Appellee,               D.C. No.
               v.
                                            CR-03-00209-HG
                                             District of Hawaii,
FRED NOBRIGA,
             Defendant-Appellant.                 Honolulu

                                                  ORDER

                     Filed January 3, 2006

   Before: Kim McLane Wardlaw and Marsha S. Berzon,
  Circuit Judges, and James M. Fitzgerald,* District Judge.


                            ORDER

   The petition for rehearing en banc is DENIED as moot. The
opinion filed May 20, 2005, and reported at 408 F.3d 1178,
is withdrawn. That opinion shall not be cited as precedent by
or to this court or any district court of the Ninth Circuit.

   Submission of this case is withdrawn and resubmission of
the case is deferred pending issuance of the opinion of the en
banc court in Fernandez-Ruiz v. Gonzales, No. 03-74533.




  *The Honorable James M. Fitzgerald, Senior United States District
Judge for the District of Alaska, sitting by designation.

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