           IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                   No. 16-40367


UNITED STATES OF AMERICA,

            Plaintiff - Appellee

v.

RAFAEL RIOS MARROQUIN, also known as Tomas Andres Marroquin,

            Defendant - Appellant

consolidated with

16-40368

UNITED STATES OF AMERICA,

            Plaintiff - Appellee

v.

RAFAEL RIOS MARROQUIN,

            Defendant - Appellant




               Appeals from the United States District Court
                    for the Southern District of Texas


               ON PETITION FOR REHEARING EN BANC
                                 No. 16-40367
                                 c/w 16-40368


Before WIENER, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:
      The Court having been polled at the request of one of its members, and
a majority of the judges who are in regular service and not disqualified not
having voted in favor (Fed. R. Ap. P. 35 and 5th Cir. R. 35), rehearing en banc
is DENIED. In the en banc poll, three judges voted in favor of rehearing
(Judges Jones, Smith, and Ho), and twelve judges voted against rehearing
(Chief Judge Stewart and Judges Dennis, Clement, Prado, Owen, Elrod,
Southwick, Haynes, Graves, Higginson, Costa, and Willett).
      Judge Smith, joined by Judges Jones and Ho, dissents from the Court’s
denial of rehearing en banc, and his dissent is attached.


ENTERED FOR THE COURT:


_________________________________
GREGG COSTA
United States Circuit Judge




                                       2
