     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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.




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