FILED FOR PUBLICATION NOV 16 2005 UNITED STATES COURT OF APPEALS CATHY A. CATTERSON, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 03-10439 Plaintiff - Appellant, D.C. No. CR-02-01805-CKJ V. JOHN GILBERT OGLES, Defendant - Appellee.

UNITED STATES OF AMERICA, No. 04-10069 Plaintiff - Appellee, D.C. No. CR-02-01805-CKJ V. ORDER JOHN GILBERT OGLES, Defendant - Appellant.

Before: SCHROEDER, Chief Judge.

Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.