                                                                       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        This order and judgment is not binding precedent except under the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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