UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

NELSON BEGAY,

Defendant-Appellant.	No. 99-4153

(D.C. No. 99-CV-123)

(Utah)

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 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