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 The opinion filed May 20, 2005, and reported at 408 F.3d 1178, is withdrawn.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Submission of this case is withdrawn and resubmission of the case is deferred pending issuance of the opinion of the en banc court in Fernandez-Ruiz v. Gonzales, No. 03-74533.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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