*

 This order and judgment is not binding precedent except under the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.

** After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

FILED

United States Court of Appeals

Tenth Circuit

January 29, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRIAN B. TUCKER,

Tucker-Appellant.

No. 09-4125

(D. of Utah)

(D.C. No. 2:04-CR-00170-DB-3)

ORDER AND JUDGMENT*

Before TACHA, TYMKOVICH, and GORSUCH, Circuit Judges.** 

Brian B. Tucker pleaded guilty, pursuant to a plea agreement, to numerous

charges arising out of a failed bank robbery. The district court sentenced Tucker

to twelve years’ imprisonment, followed by four years of supervised release.

He challenges his sentence on appeal. Lacking jurisdiction over Tucker’s

claims, we dismiss the appeal.

I.

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By way of background, this appeal is the culmination of a series of appeals

arising from Tucker’s conviction. Tucker first appealed his conviction, alleging

the government breached the plea agreement. We disagreed and affirmed. See

United States v. Tucker, 253 F. App’x 718 (10th Cir. 2007). Next, Tucker moved

the district court to vacate, set aside, or correct his sentence under 28 U.S.C.

§ 2255. The district court denied the motion. See Tucker v. United States, No.

07-cv-999, 2008 WL 732724 (D. Utah, March 17, 2008). 

Tucker appealed, and while the case was pending, Tucker filed several

other motions with the district court. First, Tucker requested a certificate of

appealability (COA). Second, Tucker moved the district court to reconsider its

denial of his first § 2255 motion. Third, Tucker moved to amend the district

court’s sentence of restitution. The district court denied the first two motions and

transferred the third motion to this court—construing it as a successive

application for relief under 28 U.S.C. § 2255.

We dismissed Tucker’s appeal seeking reconsideration of his initial § 2255

motion, noting that Tucker’s appeal of the § 2255 motion was still pending.

Addressing the underlying § 2255 appeal, we denied Tucker’s request for a COA

and, therefore, dismissed that appeal as well. See United States v. Tucker, 298 F.

App’x 794 (10th Cir. 2008).

Subsequently, Tucker filed a motion for the district court to correct two

clerical errors under Federal Rule of Criminal Procedure 36. First, Tucker

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contended that the “title and section” numbers of the statutes to which he pleaded

guilty were incorrectly denoted in the judgment order. Second, Tucker argued

that the “restitution section” of the judgment order did not accurately reflect the

adjusted calculation of restitution as reflected in a letter from the government.

Regarding the restitution, the district court found no evidence supporting a

reduction in the total amount of restitution, but it noted the government conceded

that credits “in the amount of $42,861” should be applied, reducing the “total

amount that remains owing ... [to] $22,574.87.” R., Vol. 1, Doc. 206 at 2. On

appeal, we upheld the district court’s determination. United States v. Tucker, 332

F. App’x 484, 486 (10th Cir. 2009). 

Regarding the incorrect title and section numbers, the district court ruled

that the judgment order should be amended to reflect the proper title and section

numbers of the statutes to which Tucker pleaded guilty. On appeal, however, we

noted that “[u]nfortunately, the amended judgment order incorrectly reflected the

statutory provisions,” resulting in a clerical error. Id. We issued a limited

remand only for the district court to correct the clerical errors. Id. at 487.

In accordance with our limited remand, the district court corrected the

clerical errors and entered the second amended judgment. Tucker now appeals

from that second amended judgment, again attempting to challenge his sentence

and convictions. 

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II.

We lack jurisdiction to consider this appeal. Tucker challenges his

sentencing and convictions, both of which he had previously appealed and both of

which we have upheld. See United States v. Tucker, 253 F. App’x 718 (10th Cir.

2007); United States v. Tucker, 298 F. App’x 794 (10th Cir. 2008). In regard to

this proceeding, the “grant of remand on appeal does not reopen the order

appealed from; instead, remand commences a new proceeding which will

ultimately terminate in another final order. The first final order cannot be

challenged in an appeal of the second final order.” United States v. Mendes, 912

F.2d 434, 437 (10th Cir. 1990).

Accordingly, Tucker may not now challenge previous orders by appealing

the second amended judgment. See 15 C. Wright, A. Miller & E. Cooper, Federal

Practice & Procedure § 3901, at 1 (2d ed.) (“Most court of appeals jurisdiction is

a matter of right. The right, however, is limited to a single appeal from any

single appealable order; a second appeal cannot be taken from a judgment entered

in compliance with the mandate of an earlier appeal.”).

As we stated in United States v. Webb, 98 F.3d 585 (10th Cir. 1996), “[O]ur

jurisdiction to review issues now presented is limited by the scope of our remand

and the resulting amended judgment.” Id. at 589. We remanded to the district

court to have it correct clerical errors only. It did so, and that limited remand did

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not open the matter for resentencing or for a review of the merits of the

convictions. 

Accordingly, we AFFIRM the second amended judgment of the district

court, and DISMISS this appeal.

Entered for the Court

Timothy M. Tymkovich

Circuit Judge

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