                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                                              No. 05-10060
                v.
AARON A. RUTLEDGE; ANTHONY                     D.C. No.
                                            CR-02-00438-DAE
RUTLEDGE, aka “Tony” Rutledge,
                                                ORDER
Star-Beachboys, Inc.,
           Defendants-Appellants.
                                       
        Appeal from the United States District Court
                 for the District of Hawaii
         David A. Ezra, District Judge, Presiding

                   Argued and Submitted
          June 15, 2005—San Francisco, California

                      Filed May 11, 2006

          Before: Mary M. Schroeder, Chief Judge,
          William C. Canby, Jr., Circuit Judge, and
           Kevin Thomas Duffy,* Senior Judge.


                          COUNSEL

John D. Cline, Jones Day, San Francisco, California, for the
appellant.

Patrick T. Murphy, Assistant United States Attorney, Depart-
ment of Justice, Washington, D.C., for the appellee.

  *The Honorable Kevin Thomas Duffy, Senior Judge for the Southern
District of New York, sitting by designation.

                              5295
5296              UNITED STATES v. RUTLEDGE
Keith K. Hiraoka, Roeca, Louie & Hiraoka, Honolulu,
Hawaii, for the amicus curiae.


                           ORDER

   Our opinion in this case, reported at 437 F.3d 917, was
filed on February 14, 2006. Approximately one week earlier,
on February 6, 2006, the district court accepted the guilty plea
of defendant Rutledge in the underlying criminal proceeding.
The plea was entered pursuant to a plea agreement in which
Rutledge and the government agreed that the assets that had
been the subject of the appeal would remain in the hands of
Unity House, subject to a limited and temporary receivership
to conclude certain listed business matters of Unity House. At
the time we filed our opinion, we had not been advised of the
plea and the plea agreement.

   The government now moves for withdrawal of our opinion
and dismissal of the appeal on the ground that the plea agree-
ment rendered the appeal moot. Rutledge has filed an opposi-
tion to the motion.

   We conclude that the appeal was moot at the time we filed
our opinion. The ruling in our opinion — that the assets of
Unity House were not subject to criminal forfeiture in Rut-
ledge’s pending prosecution — addressed a controversy
between the parties that no longer existed because of the inter-
vening plea agreement. See United States v. Pemberton, 852
F.2d 1241 (9th Cir. 1988) (dismissing appeal as moot when
plea agreement disposed of assets that were subject of
appeal). We accordingly grant the government’s motion. The
opinion reported at 437 F.3d 917 is withdrawn and the appeal
is dismissed as moot. Because the mootness was the result of
a settlement between the parties, we do not order vacatur of
the district court’s order. See U.S. Bancorp Mortgage Co. v.
Bonner Mall Partnership, 513 U.S. 18, 29 (1994).
                 UNITED STATES v. RUTLEDGE            5297
  The motion of Unity House, Inc., to intervene in order to
oppose the government’s motion to dismiss the appeal is
denied.

  OPINION WITHDRAWN; APPEAL DISMISSED;
INTERVENTION DENIED.
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The summary, which does not constitute a part of the opinion of the court, is copyrighted
                              © 2006 Thomson/West.
