                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS        November 4, 2003
                         FOR THE FIFTH CIRCUIT
                                                           Charles R. Fulbruge III
                                                                   Clerk

                             No. 02-41730
                           Summary Calendar



                       UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                versus

                        RICARDO REYNA-BRECEDA,

                                                   Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. L-02-CR-719-ALL
                      --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

     Ricardo Reyna-Breceda ("Reyna") was convicted after a guilty

plea for illegal reentry, in violation of 8 U.S.C. § 1326.            This

court affirmed Reyna's sentence on direct appeal.           See United

States v. Reyna-Breceda, No. 02-41730 (5th Cir. Aug. 6, 2003)

(unpublished).    After we issued our opinion affirming the sentence

but before we issued our mandate, Reyna died.       Reyna's counsel has

filed an unopposed suggestion of death and abatement of appeal, and

motion to recall the mandate and dismiss the appeal with a remand

     *
        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this opinion should not be published and is not precedent except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.
to the district court to vacate the judgment and dismiss the

indictment.

          "It is well established in this circuit that the death of a

criminal defendant pending an appeal of his or her case abates, ab

initio, the entire criminal proceeding."                      United States v. Asset,

990 F.2d 208, 210 (5th Cir. 1993).                       Our control over an appeal

continues until the mandate is issued, and "'where the mandate has

not issued the availability of appeal has not yet been exhausted.'"

First Gibraltar Bank, FSB v. Morales, 42 F.3d 895, 897 (5th Cir.

1995)(citation omitted).                       We may recall our mandate to prevent

injustice.              5TH CIR. R. 41.2.

          Given Reyna's death under the circumstances, the motion to

recall the mandate is GRANTED, the appeal is DISMISSED, and we

REMAND to the district court with instructions to vacate the

judgment           and         dismiss   the    indictment.   See   United   States   v.

Schuster, 778 F.2d 1132, 1133 (5th Cir. 1985); United States v.

Pauline, 625 F.2d 684, 684-85 (5th Cir. 1980).

          MOTION GRANTED; APPEAL DISMISSED; REMANDED WITH INSTRUCTIONS.




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