F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      August 30, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


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

               Plaintiff-Appellee,                      No. 06-6339
          v.                                   W estern District of Oklahoma
 TH O MA S B UR L C AIN ,                         (D.C. No. CR-02-211-M )

               Defendant-Appellant.



                            OR D ER AND JUDGM ENT *


Before BR ISC OE, EBEL, and M cCO NNELL, Circuit Judges.


      Defendant Thomas Cain pleaded guilty to possession of a firearm and

ammunition by an unlawful drug user. On November 3, 2004, the district court

entered his sentence as follow s:




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). This case is
therefore 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 This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and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 10 th Cir. R. 32.1.
         The defendant is hereby committed to the custody of the United
         States Bureau of Prisons to be imprisoned for a total term of 120
         months in accordance with the U.S. Sentencing Guidelines. The
         Court finds that, if the U.S. Sentencing Guidelines are later
         found to be unconstitutional in their entirety, the defendant is
         alternatively sentenced to 120 months, and further, if only the
         upward enhancements of the U.S. Sentencing Guidelines are later
         found to be unconstitutional, the defendant is alternatively
         sentenced to a term of 30 months.

R. Doc. 143, at 2. After the Supreme Court issued its decision in United States v.

Booker, 

(2005), M r. Cain filed a motion with the district court to

enforce the 30-month alternative sentence. The district court denied that motion

and ordered that the defendant be resentenced. The district court then resentenced

M r. Cain to 120 months incarceration. M r. Cain timely appealed that decision.

      This Court held that the district court did not have jurisdiction to

resentence M r. Cain. The Court explained: “Because M r. Cain did not appeal

from the November 3 judgment imposing his 120-month guidelines sentence and

because none of the § 3582 conditions are present, the district court was divested

of all jurisdiction on November 16, 2004, when the time for appeal expired. The

district court therefore lacked jurisdiction to resentence defendant.” United States

v. Cain (Cain I), 191 Fed. Appx. 830, 834 (10th Cir. 2006) (unpublished) (citation

omitted). W e ordered the district court “to vacate its void amended judgment,”

allowing the original November 3, 2004 sentence to “stand as entered.” 

      On remand, the district court followed our instructions precisely, vacating

its Order on October 25, 2006. M r. Cain now appeals the October 25, 2006

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Order. He argues that the 30 month portion of the original alternative sentence

should be enforced.

      W e lack jurisdiction on this appeal to entertain any challenge to M r. Cain’s

sentence. M r. Cain is incarcerated pursuant to the district court’s original

sentencing decision of November 3, 2004. The October 25, 2006 Order did not

disturb that sentence, which “stand[s] as entered.” 

I, this Court

explicitly held that M r. Cain’s N ovember 3, 2004 sentence “was a final,

appealable sentence that was binding on M r. Cain” and that the “time for appeal

expired” on November 16, 2004. 

M r. Cain failed to appeal the

sentence within the time period required by Rule 4(b) of the Federal Rules of

Appellate Procedure. See United States v. Smith, 

, 734 (10th Cir.

1999); United States v. Ceballos-M artinez, 

, 733 (10th Cir. 2004).

      W e do have jurisdiction to consider M r. Cain’s challenge to the Order of

October 25, 2006, which was the final order in the case on remand. But that order

did nothing more than carry out this Court’s remand instructions in Cain I to the

letter. If M r. Cain wished to challenge this Court’s decision in Cain I, he should

have filed a petition for certiorari with the United States Supreme Court. W e will

not allow an appeal from the district court’s order carrying out our instructions on

remand to serve as a back-door means of revisiting our prior decision.




                                          -3-
     The judgment of the United States District Court for the W estern District of

Oklahoma is AFFIRM ED.

                                             Entered for the Court,

                                             M ichael W . M cConnell
                                             Circuit Judge




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