FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                December 18, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                      No. 08-6096
 MATTHEW JON FERNANDEZ,                         (D.C. No. 5:07-CR-00153-R-1)
                                                        (W.D. Okla.)
          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK, and HOLMES, Circuit Judges.



      On direct appeal from his conviction for drug-related charges, Defendant-

Appellant Matthew Jon Fernandez contended that his constitutional rights under

the Fifth and Sixth Amendments were violated by the introduction at trial of

hearsay statements made by unidentified confidential informants. Additionally,

Mr. Fernandez contended that the district court erred by denying his motion to

suppress physical evidence, and in calculating his sentence. While the appeal was


      *
        This order and judgment is not binding precedent, except under the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.
pending and before oral argument, however, counsel for both parties joined in the

filing of a motion to dismiss this appeal informing this court that Mr. Fernandez

died on December 3, 2008. “[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, 

, 1486

(10th Cir. 1992) (quoting Durham v. United States, 

, 483 (1971) (per

curiam) (footnote omitted) overruled on other grounds, Dove v. Untied States,

(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890 (10th Cir. Feb. 6, 2002) (unpublished) (remanding case, with directions to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 of conviction and dismiss the underlying indictment, where

appellant died pending the direct appeal of his sentence).

      Accordingly, we GRANT the joint motion to dismiss this appeal. Further,

this case is REMANDED to the district court with directions to VACATE the

judgment of conviction and DISMISS the underlying indictment.

      This case is also removed from the presently scheduled January 16, 2009,

oral argument calendar, and counsel are excused from attendance.

                                              Entered for the Court



                                              Mary Beck Briscoe
                                              Circuit Judge




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