United States v. Hadden , 112 F. App'x 907 ( 2004 )

Rehearing granted, February 15, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-7508
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONATHAN WAYNE HADDEN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Cameron McGowan Currie, District
Judge. (CR-98-156; CA-02-334-22-4)
Submitted: October 1, 2004 Decided: November 2, 2004
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant. J. Strom
Thurmond, Jr., United States Attorney, Alfred W. Bethea, Jr.,
Assistant United States Attorney, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
In March 1999, Donathan Wayne Hadden was convicted by a
jury of conspiracy to possess with intent to distribute and
distribution of methamphetamine (Count I); attempted possession
with intent to distribute methamphetamine (Count II); and using and
carrying a firearm during and in relation to a drug trafficking
crime (Count III or § 924(c)1 count). The district court sentenced
him to 168 months on the drug charges, plus a sixty-month mandatory
consecutive term for the firearm violation. This court affirmed
his convictions and sentence on direct appeal. United States v.
Hadden, Nos. 99-4503, 99-4504 (4th Cir. July 18, 2000)
(unpublished).
Hadden subsequently sought relief pursuant to 28 U.S.C.
§ 2255 (2000). In an order dated November 12, 2002, the district
court denied § 2255 relief on Hadden’s claims relating to the drug
charges and granted a conditional writ of habeas corpus as to the
§ 924(c) count based on the decision in Bailey v. United States,
516 U.S. 137 (1995). On November 22, 2002, after the Government
informed the court that it did not intend to retry Hadden on the
§ 924(c) count, the district court entered an amended criminal
judgment with respect to Counts I and II. In entering the
judgment, the district court reimposed the original 168-month
1
18 U.S.C. § 924(c) (2000).
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sentence on the drug counts and deleted the sixty-month consecutive
sentence on the § 924(c) count.
On appeal, Hadden argues that the district court erred in
entering an amended judgment as to the drug counts without holding
a resentencing hearing. Hadden fails to set forth any sentencing
issue for the district court to resolve at a resentencing hearing,
and merely argues that he has an absolute right to such a hearing.
A defendant clearly has the right to be present at
sentencing. Fed. R. Crim. P. 43(a)(3). Rule 43(b) provides,
however, that a defendant does not have the right to be present if
the “proceeding involves the correction or reduction of sentence
under Rule 35 or 18 U.S.C. § 3582(c).” Fed. R. Crim. P. 43(b)(4).
We decline to reach the issue of whether the district court
violated Rule 43 in issuing an amended judgment without holding a
resentencing hearing; even if a violation of Rule 43 occurred, any
resulting error was harmless. United States v. Pratt, 351 F.3d
131, 138 (4th Cir. 2003) (finding that violations of Rule 43 are
subject to harmless error analysis); United States v. Rogers, 853
F.2d 249, 252 (4th Cir. 1988) (same). Because Hadden’s initial
brief2 fails to set forth any sentencing issue for the district
2
In Hadden’s reply brief, he argues that he may now raise
arguments at resentencing in light of the Supreme Court’s decision
in Blakely v. Washington, 124 S. Ct. 2531 (2004). We recently
held, however, “that Blakely, like Apprendi [v. New Jersey, 530
U.S. 466 (2000)] before it, does not affect the operation of the
federal sentencing guidelines.” United States v. Hammoud, 381 F.3d
316, 2004 WL 2005622, at *28 (4th Cir. Sept. 8, 2004) (en banc);
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court to resolve at a resentencing hearing, we find that any
resulting error was harmless.
Accordingly, we affirm Hadden’s amended sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
United States v. Hammoud, 378 F.3d 426 (4th Cir. 2004) (order),
petition for cert. filed, __ U.S.L.W. __ (U.S. Aug. 6, 2004) (No.
04-193).
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