United States v. Whites , 141 F. App'x 101 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-7938
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY WHITES, a/k/a Marcus D. Whites, a/k/a
Anthony Chavalier Whites,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, District
Judge. (CR-02-83)
Submitted: June 20, 2005 Decided: July 19, 2005
Before LUTTIG, WILLIAMS, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kenneth M. Mathews, Columbia, South Carolina, for Appellant.
Jonathan S. Gasser, Acting United States Attorney, Stacey D.
Haynes, Assistant United States Attorney, Columbia, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Anthony Whites, a/k/a Marcus D. Whites, a/k/a Anthony
Chavalier Whites, appeals the district court’s order granting the
Government’s motion to reduce his sentence under Fed. R. Crim. P.
35(b). We conclude that the district court did not abuse its
discretion when it granted the Government’s Rule 35(b) motion
without holding an evidentiary hearing. See United States v.
Pridgen, 64 F.3d 147, 149-50 (4th Cir. 1995).
Moreover, Whites’ challenge to his original sentence
under the Supreme Court’s decision in United States v. Booker, 125
S. Ct. 738 (2005), is without merit. A final judgment is one where
the judgment of conviction has been rendered, the availability of
appeal exhausted, and the time for petitioning the Supreme Court
for certiorari has expired. Allen v. Hardy, 478 U.S. 258, 258 n.1
(1986). A later modification to a sentence does not affect the
date on which the judgment of conviction became final. See United
States v. Sanders, 247 F.3d 139, 143 (4th Cir. 2001). This court
affirmed Whites’ conviction on July 3, 2003. Whites’ conviction
became final ninety days later, when the time period for filing his
writ of certiorari expired. Whites cannot now resurrect his direct
appeal simply because the district court resentenced him pursuant
to a Rule 35(b) proceeding. Moreover, his resentencing was not
based on the sentencing guidelines. Thus, Whites’ Booker challenge
fails, and, to the extent he challenges the amount of the reduction
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he received, this court lacks jurisdiction to review that
determination. See Pridgen, 64 F.3d at 149-50.
Accordingly, we affirm the decision of the district
court. 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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