NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
The only issue presented by this appeal is whether its outcome is dictated by Lustgarden v. Gunter, 966 F.2d 552 (10th Cir.), cert. denied, 113 S.Ct. 624 (1992). Although, the two cases are factually and legally identical, petitioner attempts to distinguish them. We are unpersuaded by those attempts and consequently hold we are bound by Lustgarden. United States v. Cooper, 956 F.2d 960, 961 (10th Cir.1992) (one panel of this court cannot overrule the prior holding of another panel).
AFFIRMED.
The Honorable Paul H. Roney, Senior Circuit Judge for the United States Court of Appeals for the Eleventh Circuit, sitting by designation
This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3