Appellate Case: 22-5020 Document: 010110756228 Date Filed: 10/20/2022 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 20, 2022 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 22-5020 (D.C. No. 4:21-CR-00144-GKF-1) ANDREW GIBBS, a/k/a Andrew Lee (N.D. Okla.) Gibbs,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges. _________________________________

This matter is before us on the parties’ Joint Motion to Remand. The parties

agree that the district court constructively amended the indictment via a jury

instruction defining sexual contact, and Appellant Andrew Gibbs is entitled to relief

for plain error.

Upon consideration, the Joint Motion to Remand is granted. Mr. Gibbs’

conviction on Count Two is vacated. This appeal is dismissed and this matter is

* In light of the parties’ joint motion, oral argument is not necessary, and this matter is submitted on the briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 22-5020 Document: 010110756228 Date Filed: 10/20/2022 Page: 2

remanded with instructions to the district court to enter an amended judgment as to

County Three only consistent with the Joint Motion to Remand.

The Clerk is directed to issue the mandate forthwith.

Entered for the Court Per Curiam

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