                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                     File Name: 09a0120p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                            X
                       Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                             -
                                             -
                                             -
                                                              No. 05-3708
           v.
                                             ,
                                              >
                                             -
                      Defendant-Appellee. -
 JAMES M. FUNK,
                                             -
                                            N

                                 Filed: March 27, 2009
                                     _________________

                                           ORDER
                                     _________________

       This matter now comes before the court upon the motion of the appellant United
States, to which motion the appellee has not objected, to dismiss the appeal with prejudice
pursuant to FED. R. APP. P. 42(b).

       The court GRANTS the unopposed motion to dismiss. The opinion of the panel,
which was vacated pursuant to the court’s order of December 18, 2008 granting en banc
review, 6 Cir. R. 35(a), remains vacated.

                                                   ENTERED BY ORDER OF THE COURT




                                                              Leonard Green, Clerk




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