F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 26, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 05-2397
v. (D. New M exico)
BRIAN SANDO VA L, (D.C. No. CR-04-1636 M CA)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before L UC ER O, M cW ILLIAM S, and HA RTZ, Circuit Judges.
Brian Sandoval appeals his sentence on the ground that some of his special
conditions of release are unlawful. The sentence that he appeals was entered on
December 9, 2005, after he violated the conditions of release imposed by a prior
sentence entered on November 16, 2004, in this same case. He previously
appealed that prior sentence on the same grounds. Indeed, the Argument section
of his opening brief on this appeal contains only two sentences, the second of
which states that this appeal is “for the purpose of preserving his ability to pursue
*
This order and judgment is not binding precedent except under the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.
meaningful review of the [sentence imposed after he violated his conditions of
release].” Aplt. Br. at 8. The brief contains no argument that he may be entitled
to relief on this appeal even if he loses his prior appeal. Apparently the purpose
of this appeal is to ensure that if he were granted relief in the prior appeal, so that
the special conditions were voided, he would not be confronted with a contention
that he had forfeited the right to challenge the same conditions when they were
imposed on resentencing.
Today we have affirmed M r. Sandoval’s November 16, 2004, sentence. See
United States v. Sandoval, No. 04-2323 (10th Cir. Feb. 26, 2007). Because
M r. Sandoval has presented no argument for distinguishing his grounds for appeal
in that case from his grounds here, we likewise affirm the sentence in this case.
There is, however, one complication. The government contends that the
district court lacked jurisdiction to impose the sentence entered in December
2005, because there was no permissible ground to modify the sentence originally
imposed in October 2005 for M r. Sandoval’s violation of his conditions of
release. The government is probably correct. See 18 U.S.C. § 3582(c); Fed. R.
Crim. P. 35, 36; United States v. Smith, 438 F.3d 796, 799-801 (7th Cir. 2006).
But at oral argument M r. Sandoval’s attorney stated that the government’s
jurisdictional argument was “moot” because M r. Sandoval “did his entire 11
months in prison.” W e take this statement to mean that even if the modifications
to the October 2005 judgment made in the December 2005 judgment are invalid
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because the district court lacked jurisdiction to make any modifications, the
modifications are of no practical significance. The government has not suggested
otherwise. Therefore, we need not address whether the district court had
jurisdiction in December 2005 to modify the October 2005 sentence.
W e A FFIR M the judgment below.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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