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

Case: 11-10771 Document: 00511836674 Page: 1 Date Filed: 04/26/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 26, 2012
No. 11-10771
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
DAVID CHRISTIAN VIADO
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:10-CR-145-1
Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
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
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-10771 Document: 00511836674 Page: 2 Date Filed: 04/26/2012
No. 11-10771
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, 132 S. Ct. 1463 (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.
2