United States v. David Viado

Fifth Circuit

United States v. David Viado

470 F. App'x 288

CourtCourt of Appeals for the Fifth Circuit

DecidedApril 26, 2012

Docket11-10771

StatusUnpublished

This text of 470 F. App'x 288 (United States v. David Viado) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. David Viado, 470 F. App'x 288 (5th Cir. 2012).

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Opinion

PER CURIAM: *

Appealing the judgment in a criminal case, David Christian Viado raises arguments that he concedes are foreclosed by United States v. Brown, 920 F.2d 1212, 1216-17 (5th Cir.1991), abrogated on other grounds by United States v. Candia, 454 F.3d 468, 472-73 (5th Cir.2006), which held that 18 U.S.C. § 3584(a) authorizes a district court to order a federal sentence to run consecutively to a yet-to-be-imposed state sentence. He asks that his appeal be held in abeyance pending a possible resolution of the issue by the Supreme Court; however, that Court recently affirmed our ruling in a case raising the identical issue. United States v. Setser, 607 F.3d 128, 131—32 & n. 2 (5th Cir.2010), aff'd, - U.S. -, 132 S.Ct. 1463, 182 L.Ed.2d 455 (2012).

The Government moves to dismiss the appeal as moot and, in the • alternative, moves for summary affirmance or for an extension of time to file a merits brief. The Government is correct that the appeal is moot as record evidence shows that Viado is not subject to a potential state sentence and his federal sentence cannot be consecutive to a nonexistent sentence. See Rocky v. King, 900 F.2d 864, 867 (5th Cir.1990). Accordingly, the appeal is DISMISSED AS MOOT. All other pending motions are DENIED.

APPEAL DISMISSED; MOTIONS FOR SUMMARY AFFIRMANCE, EXTENSION OF TIME, AND TO HOLD APPEAL IN ABEYANCE DENIED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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PER CURIAM: *

Appealing the judgment in a criminal case, David Christian Viado raises arguments that he concedes are foreclosed by United States v. Brown, 920 F.2d 1212, 1216-17 (5th Cir.1991), abrogated on other grounds by United States v. Candia, 454 F.3d 468, 472-73 (5th Cir.2006), which held that 18 U.S.C. § 3584(a) authorizes a district court to order a federal sentence to run consecutively to a yet-to-be-imposed state sentence. He asks that his appeal be held in abeyance pending a possible resolution of the issue by the Supreme Court; however, that Court recently affirmed our ruling in a case raising the identical issue. United States v. Setser, 607 F.3d 128, 131—32 & n. 2 (5th Cir.2010), aff'd, - U.S. -, 132 S.Ct. 1463, 182 L.Ed.2d 455 (2012).

The Government moves to dismiss the appeal as moot and, in the • alternative, moves for summary affirmance or for an extension of time to file a merits brief. The Government is correct that the appeal is moot as record evidence shows that Viado is not subject to a potential state sentence and his federal sentence cannot be consecutive to a nonexistent sentence. See Rocky v. King, 900 F.2d 864, 867 (5th Cir.1990). Accordingly, the appeal is DISMISSED AS MOOT. All other pending motions are DENIED.

APPEAL DISMISSED; MOTIONS FOR SUMMARY AFFIRMANCE, EXTENSION OF TIME, AND TO HOLD APPEAL IN ABEYANCE DENIED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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470 F. App'x 288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-david-viado-ca5-2012.

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