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United States Court of Appeals,Ninth Circuit.

UNITED STATES of America, Plaintiff–Appellee, v. Damien ZEPEDA, Defendant–Appellant.

No. 10–10131.

Decided: February 10, 2014

Joan G. Ruffennach, Assistant U.S., Office of the U.S. Attorney, Phoenix, AZ, for Plaintiff–Appellee. Michele R. Moretti, Esquire, Law Office of Michele R. Moretti, Lake Butler, FL, for Defendant–Appellant.


Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35–3. The three judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.

KOZINSKI, Chief Judge: