United States v. Chavis , 161 F. App'x 339 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-6939
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DERRICK RAY CHAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
Chief District Judge. (CR-04-67)
Submitted: January 20, 2006 Decided: February 8, 2006
Before LUTTIG, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James B. Craven, III, Durham, North Carolina, for Appellant. Frank
D. Whitney, United States Attorney, Anne M. Hayes, Christine
Witcover Dean, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Derrick Ray Chavis appeals the district court’s order
denying his motion for correction of judgment, filed pursuant to
Fed. R. Crim. P. 36. Chavis pleaded guilty, pursuant to a plea
agreement, to one count of conspiracy to distribute and possess
with intent to distribute more than fifty kilograms of cocaine and
more than fifty grams of crack cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 846 (2000). The district court granted the
Government’s motion for a downward departure and imposed a sentence
of 101 months of imprisonment. In accordance with this court’s
recommendation in United States v. Hammoud, 378 F.3d 426 (4th Cir.
2004) (order), opinion issued by 381 F.3d 316 (4th Cir. 2004) (en
banc), vacated, 125 S. Ct. 1051 (2005), the court also stated an
alternate sentence of ninety months of imprisonment. Chavis did
not appeal his conviction or sentence. In March 2005, after the
period for filing an appeal expired, Chavis filed a motion for
correction of judgment, in which he sought to have the lower
alternate sentence implemented. The district court concluded that
Rule 36 did not provide authority to modify Chavis’s sentence, and
that the court did not otherwise have jurisdiction to implement the
alternate sentence, and denied Chavis’s motion. We affirm.
This court has previously considered the authority of a
district court to modify a sentence under Rules 35 and 36. United
States v. Fraley, 988 F.2d 4 (4th Cir. 1993). Our review of the
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record leads us to conclude that, as in Fraley, here there was no
clerical error in the judgment, and “[w]hen the district court
unequivocally states a sentence and then imposes it, and the
sentence is not the product of error, the district court has no
authority to alter that sentence.” Id. at 7. Chavis’s assertion
that the phrasing of the district court’s alternate sentence was
erroneous because the words “unconstitutional in their entirety”
exceeded the scope of this court’s recommendation in Hammoud is
meritless.
We therefore affirm the district court’s order denying
Chavis’s motion for correction of judgment. 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
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