CASPER, Wyo. (AP) — A federal appeals court in Colorado has ruled that a 74-year-old Wyoming man convicted of kidnapping, raping and killing a Montana woman can still be subject to the death penalty.

Dale Wayne Eaton was convicted in 2004 and sentenced to death for the 1988 killing of Lisa Marie Kimmell, of Billings. But a federal judge later overturned the death sentence.

The Casper Star-Tribune reports that Eaton had asked the 10th U.S. Circuit Court of Appeals in Denver to prohibit prosecutors from seeking the death penalty again.

But on Tuesday, a three-judge panel from the court declined Eaton's request. Eaton can appeal the decision to the U.S. Supreme Court.

Sean O'Brien, a Kansas City lawyer who led Eaton's appeal, could not immediately be reached for comment.