UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GEORGE LEWIS SLOAN,

Defendant - Appellant.

No. 01-7140

DC. No. 99-CR-89-S

(Eastern District of Oklahoma)

ORDER AND JUDGMENT*
Before BRISCOE, PORFILIO, and MURPHY, Circuit Judges.

On appeal, George Lewis Sloan contended that the district court erred in re-calculating his sentence after remand from this court. While the appeal was pending, however, Mr. Sloan died. "[D]eath pending direct review of a criminal conviction abates not only the appeal but also all proceedings had in the prosecution from its inception.'" United States v. Davis, 953 F.2d 1482, 1486 (10th Cir. 1992) (quoting Durham v. United States, 402 U.S. 481, 483 (1971) (per curiam), overruled on other grounds, Dove v. United States, 423 U.S. 325 (1976) (per curiam)). Accordingly, the case is remanded to the district court with directions to vacate the judgment of conviction and dismiss the underlying indictment. See id. The mandate shall issue forthwith.

Entered for the Court

Per Curiam