United States v. Thomas Pickett , 513 F. App'x 294 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4278
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
THOMAS NEIL PICKETT,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:04-cr-00047-F-1)
Submitted: February 26, 2013 Decided: March 5, 2013
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas Neil Pickett appeals from the district court’s
order granting the government’s unopposed motion for entry of an
amended judgment. He contends that the district court erred by
not holding a full resentencing hearing to revisit issues
concerning the drug quantity attributable to him, his request
for a downward departure, and the reasonableness of his
sentence. We affirm the district court’s order entering the
amended judgment.
Pickett was convicted of possession of firearms by a
felon, use of a firearm during and in relation to a drug
trafficking crime, distribution of cocaine base, and conspiracy
to distribute five or more grams of cocaine base. He was
sentenced to a total of 352 months’ imprisonment. Following the
amendments to the crack cocaine Guidelines, Pickett filed a
motion for, and was granted, a reduction in his sentence from
292 months to 235 months on the drug charges.
In September 2011, the district court for the Eastern
District of Texas — where Pickett was serving his sentence —
granted Pickett’s motion pursuant to 28 U.S.C.A. § 2241 (West
Supp. 2012), and vacated Pickett’s conviction and sentence on
the charge of using and carrying a firearm in relation to a drug
trafficking offense. The Texas court transferred the case to
the Eastern District of North Carolina “for appropriate action.”
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The district court, upon receiving the case from the
Texas court, appointed counsel for Pickett and directed the
parties to submit their positions as to whether the court should
conduct a full resentencing. Pickett filed a pro se motion for
modification of his sentence pursuant to the recent amendment to
the crack cocaine Guidelines, and in that motion, requested that
the court re-calculate his Guideline range, consider his post-
sentencing rehabilitation, and conduct a full resentencing. In
response to the court’s order, the Government filed a unopposed
motion for entry of an amended judgment. The motion notes that
Pickett’s attorney had no objection to the motion.
The district court denied Pickett’s motion for
modification of his sentence, noting that he had previously been
granted a reduction of sentence based on the amendments to the
crack cocaine Guidelines. The court also granted the
Government’s unopposed motion to enter an amended judgment. In
the amended judgment, the district court noted that Pickett’s
conviction and sentence under Count 2 had been vacated by the
Texas district court. The court also determined that Pickett’s
conviction under Count 1 was no longer valid due to United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011). The court
noted that the statutory maximum for Counts 3 and 4 was reduced
to 240 months, resulting in Pickett’s Guidelines range being
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narrowed to 235-to-240 months. The court then ratified the 235-
month sentence previously imposed.
Pickett appeals from the amended judgment, contending
that the court should have conducted a full resentencing
hearing. He also contends that the sentence imposed is
unreasonable.
This court has held that a defendant need not be
present when the court corrects a sentence by striking from the
sentence those terms which are unlawful and re-entering the
judgment with only the lawful terms from the original judgment.
See United States v. Hadden, 475 F.3d 652, 667-68 (4th Cir.
2007) (citing United States v. Erwin, 277 F.3d 727, 730 (5th
Cir. 2001)). Here, the district court did not alter the
sentencing terms imposed at Pickett’s original sentencing
hearing. Rather, the court entered an amended judgment
reflecting that the district court in Texas had vacated
Pickett’s conviction under Count 2, and also to reflect that
Pickett’s conviction and sentence for Count 1 were no longer
valid due to this Court’s decision in Simmons. Because the
order entered by the district court was for the purpose of
correcting the judgment, rather than imposing a new sentence, a
sentencing hearing was not required under these circumstances.
See Hadden, 475 F.3d at 667.
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Pickett’s remaining claims are foreclosed by the
mandate rule, which bars relitigation of issues previously
decided by the appellate court. United States v. Bell, 5 F.3d
64, 66-67 (4th Cir. 1993); see Doe v. Chao, 511 F.3d 461, 465
(4th Cir. 2007) (mandate rule provides that “any issue that
could have been but was not raised on appeal is waived and thus
not remanded.”) (internal quotation marks omitted). Moreover,
these claims were waived by Pickett’s concurrence in the
Government’s unopposed motion for entry of an amended judgment,
in which it was conceded that there would be “no jurisdictional
impediment” to district court’s entry of an amended judgment.
Accordingly, we affirm the amended judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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