                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 December 12, 2008
                     UNITED STATES COURT OF APPEALS
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 07-5149
 v.
                                               (D.C. No. 06-CR-063-001-TCK)
                                                         (N.D. Okla.)
 KEVIN LEROY RICE,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRISCOE, BRORBY, and EBEL, Circuit Judges.



      On appeal, Defendant-Appellant Kevin Leroy Rice contended that there

was insufficient evidence to support his conviction for being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g). While the appeal was pending

and after oral argument, however, the warden of the prison where Mr. Rice was

incarcerated informed this court that Mr. Rice has died. “[D]eath pending direct

review of a criminal conviction abates not only the appeal but also all proceedings



      *
         This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
had in the prosecution from its inception.” United States v. Davis, 953 F.2d

1482, 1486 (10th Cir. 1992) (quoting Durham v. United States, 401 U.S. 481, 483

(1971) (per curiam) (footnote omitted) overruled on other grounds, Dove v.

United States, 423 U.S. 325 (1976) (per curiam)); see also United States v. Sloan,

26 Fed. Appx. 890 (10th Cir. Feb. 6, 2002) (unpublished) (remanding case, with

directions to vacate the judgment and dismiss the underlying indictment, where

appellant died pending the direct appeal of his sentence).

      Accordingly, this case is REMANDED to the district court with directions

to VACATE the judgment of conviction and DISMISS the underlying indictment. 1



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




      1
        If counsel for the Appellant wishes to challenge the factual premise that
Appellant has died, counsel shall do so by filing a request for reconsideration of
this order within ten days from the date of the filing of this Order.

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