                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         MAY 25 2000

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 99-4153
 v.                                                (D.C. No. 99-CV-123)
                                                          (Utah)
 NELSON BEGAY,

          Defendant-Appellant.



                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

      Nelson Begay brought this action under 28 U.S.C. § 2255 attacking a

district court order dated October 2, 1998, which revoked his supervised release

and sentenced him to nine months incarceration to be followed by twenty-seven

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
months of supervised release. The district court dismissed the section 2255

proceeding on the ground that Mr. Begay had not brought a direct appeal of the

above order and had failed to show cause for his failure to do so. Mr. Begay

appeals.

      The order denying Mr. Begay’s section 2255 petition was filed July 13,

1999. On October 21, 1999, the district court entered an order finding excusable

neglect for Mr. Begay’s failure to file a timely appeal under Federal Rule of

Appellate Procedure 4(b) of the October 2, 1998 order resentencing him after

revocation of his supervised release. We have on this date issued an order and

judgment in the appeal from the resentencing in which we affirm the sentence

imposed by the district court on the basis of the Supreme Court’s opinion in

Johnson v. United States, No. 99-5153, 2000 WL 574359 (U.S. May 15, 2000).

See United States v. Begay, No. 98-4195, 2000 WL          (10th Cir.            ).

Our decision in that case rejecting the same argument Mr. Begay makes here

renders this proceeding moot.

      Accordingly, we DISMISS this appeal.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Chief Judge




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