                                                               FILED
                                                    United States Court of Appeals
                                                            Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                     September 20, 2007
                              FO R TH E TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                        Clerk of Court


    U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,

     v.                                                     No. 06-3343
                                                    (D.C. No. 06-CR-10095-W EB)
    AD RIAN PLASCENCIA-GO M EZ,                               (D . Kan.)

               Defendant-Appellant.



                               OR D ER AND JUDGM ENT *


Before HA RTZ, Circuit Judge, BROR BY, Senior Circuit Judge and
T YM K O VIC H, Circuit Judge.




          Due to a clerical error, this matter w as originally terminated in an order,

rather than an order and judgment. W e vacate the order entered on September 20,

2007. In its place we are issuing this order and judgment nunc pro tunc to

September 20, 2007.




*
       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 case is
therefore ordered submitted without oral argument. 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Appellant’s Unopposed M otion for Summary Remand is GRANTED. W e

decline to consider the issue addressed in the parties’ appellate briefing, which

was raised for the first time on appeal. See Singleton v. Wulff, 428 U.S. 106, 120

(1976); Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 720-21 (10th Cir. 1993).

Appellee’s M otion to Supplement Record on Appeal is DENIED. This case is

REVERSED and REM ANDED to the district court for re-sentencing.

      The mandate shall issue forthwith.


                                                    Entered for the Court



                                                    Timothy M . Tymkovich
                                                    Circuit Judge




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