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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
2