
    UNITED STATES of America, Plaintiff-Appellee, v. Todd Anthony HERNANDEZ, Defendant-Appellant.
    No. 07-10428.
    United States Court of Appeals, Ninth Circuit.
    April 3, 2009.
    Michael K. Kawahara, Esquire, USH-Office of the U.S. Attorney, Honolulu, HI, for Plaintiff-Appellee.
    Philip A. Demassa, I, Esquire, Philip A. Demasa APC, San Diego, CA, for Defendant-Appellant.
    D.C. No. CR-05-00196-SOM, District of Hawaii, Honolulu.
    Before: REINHARDT, BRUNETTI and THOMAS, Circuit Judges.
   ORDER

The memorandum disposition filed February 24, 2009, 312 Fed.Appx. 937, is hereby amended as follows:

1. At page 4, line 3, after <drug offense.” >, insert footnote 1. The text of the footnote shall read: <Because the statute of limitations has run, see 21 U.S.C. § 851(e), Hernandez may not now “den[y] any allegation of the information of prior conviction, or claim[ ] that any conviction alleged is invalid.” 21 U.S.C. § 851(c). Hernandez nonetheless may argue that his prior conviction, as a matter of law, does not constitute a conviction of a “felony drug offense.” For the reason set forth above, we disagree. We do not, moreover, despite defendant’s suggestion, apply the “beyond a reasonable doubt” standard applicable to factual findings under 21 U.S.C. § 851(c). >

With this amendment, the panel has unanimously voted to deny the petition for panel rehearing. Judges Reinhardt and Thomas have voted to deny the petition for rehearing en banc, and Judge Brunetti has so recommended. The full court has been advised of the petitions 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 petitions for rehearing and rehearing en banc are DENIED.

No subsequent petition for rehearing or for rehearing en banc may be filed in this matter.  