Payton

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-10567 Plaintiff-Appellee, v.  D.C. No.

CR-05-00333-OWW

MICHAEL CLAY PAYTON,

ORDER

Defendant-Appellant.  Filed January 15, 2010

Before: William C. Canby, Jr. and Kim McLane Wardlaw, Circuit Judges, and Richard Mills,* District Judge.

ORDER

This order addresses procedural issues that arose after the filing of our opinion in this matter on July 21, 2009. See United States v. Payton, 573 F.3d 859 (9th Cir. 2009). The issues primarily concern post-opinion mootness and the ques- tion whether our opinion should be vacated and the appeal dismissed as moot. We deny vacatur and dismissal.

Our opinion held that a search of Payton’s computer was unlawful, and we accordingly reversed the denial of Payton’s motion to suppress the fruits of that search. We remanded with instructions to permit Payton to withdraw his conditional guilty plea. See id. at 864-65.

After our opinion was filed, the government asked for and received an extension of time to September 3, 2009, to file a

*The Honorable Richard Mills, United States District…