     Case: 10-11237     Document: 00511963346         Page: 1     Date Filed: 08/21/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 21, 2012
                                     No. 10-11237
                                  Conference Calendar                      Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DARRYL B. MCCULLOUGH,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CR-125-1


Before SMITH, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Appealing the judgment in a criminal case, Darryl B. McCullough raises
arguments that he concedes are foreclosed by Setser v. United States, 132 S. Ct.
1463 (2012), and United States v. Harrimon, 568 F.3d 531 (5th Cir. 2009). In
Setser, the Supreme Court held that 18 U.S.C. § 3584 authorizes a district court
to order a federal sentence to run consecutively to a yet-to-be-imposed state
sentence. Setser, 132 S. Ct. at 1466-73. In Sykes v. United States, 131 S. Ct.
2267, 2277 (2011), the Supreme Court validated our holding in Harrimon, that

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-11237   Document: 00511963346     Page: 2   Date Filed: 08/21/2012

                                 No. 10-11237

the Texas offense of evading arrest or detention by use of a vehicle is a violent
felony under the Armed Career Criminal Act (ACCA), by holding that a
conviction under Indiana’s felony vehicle flight law constituted a violent felony
under the ACCA.       Accordingly, the Government’s motion for summary
affirmance is GRANTED, the Government’s alternative motion for an extension
of time to file a brief is DENIED, and the judgment of the district court is
AFFIRMED.




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