United States of America, Plaintiff-appellee, v. Timothy Dean Smith, Defendant-appellant, 405 F.3d 726 (9th Cir. 2005)

ORDER

The court's opinion filed December 3, 2004, slip op. 16459, and appearing at 390 F.3d 661 (9th Cir. 2004), is hereby amended as follows:

1. Line seven on slip op. 16467, after citation to Bonat, 106 F.3d at 1477, insert: "The Supreme Court has recently approved the use of a plea colloquy transcript. See Shepard v. United States, 544 U.S. ___, 125 S. Ct. 1254, 1255, ___ L. Ed. 2d ___ (2005)."

2. Line five of slip op. 16471, after "of this mandate," insert: "The Supreme Court has suggested that a court's reliance on a defendant's own admissions, as evidenced by a plea transcript, does not implicate the concerns underlying Apprendi. See Shepard, 125 S. Ct. at 1261-62."

With these amendments, the panel has voted to deny the petition for panel rehearing. Judge Gould and Judge Bea have voted to deny the petition for rehearing en banc, and Judge Wallace so recommended. The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED. No subsequent petitions for rehearing or rehearing en banc may be filed.