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This order and judgment is not binding precedent, except under the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 Appx. 890 (10th Cir. Feb. 6, 2002) (unpublished) (remanding case, with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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