United States v. Budd , 208 F. App'x 271 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4899
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEITH ANTHONY BUDD,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CR-
98-519-DKC)
Submitted: October 31, 2006 Decided: December 4, 2006
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Stephen M. Schenning, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith Anthony Budd pled guilty, pursuant to a plea
agreement, to conspiring to distribute and possess with intent to
distribute a quantity of marijuana and cocaine, in violation of 21
U.S.C. § 846 (2000). After we affirmed Budd’s conviction and
dismissed the appeal of the sentence based on his waiver of
appellate rights in the plea agreement, see United States v. Budd,
3 F. App’x 153 (4th Cir. 2001) (No. 00-4329), the Government filed
a motion under Fed. R. Crim. P. 35(b) to reduce Budd’s sentence.
The district court granted the Government’s motion and entered an
amended judgment sentencing Budd to 108 months of imprisonment.
Budd appeals, contending that the district court abused its
discretion by failing to grant a greater departure and by failing
to sentence him anew in accordance with United States v. Booker,
543 U.S. 220 (2005). Budd also asserts that the Government
breached the plea agreement by seeking only a two-level downward
departure.* We affirm.
“[A]ppeals from rulings on Rule 35(b) motions are
governed by 18 U.S.C. § 3742 [(2000)].” United States v. Hartwell,
448 F.3d 707, 712 (4th Cir. 2006) (citing United States v. Pridgen,
64 F.3d 147, 149 (4th Cir. 1995)), cert. denied, 75 U.S.L.W. 3174*
To the extent that Budd also attempts to challenge in this
appeal the Government’s failure to move for a downward departure in
the original sentencing proceedings, he may not do so. See United
States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (discussing
doctrine of law of the case).
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(U.S. Oct. 2, 2006) (No. 06-6076). This court does not have
“jurisdiction to review the extent of the district court’s downward
departure, except in instances in which the departure decision
resulted in a sentence imposed in violation of law or resulted from
an incorrect application of the Guidelines.” United States v.
Hill, 70 F.3d 321, 324 (4th Cir. 1995). If a defendant “alleg[es]
that his otherwise final sentence was imposed in violation of
law[,] [h]e may make that claim in appealing a ruling on a Rule
35(b) motion.” Hartwell, 448 F.3d at 713.
Budd claims that he should have been resentenced in
accordance with Booker and that the Government breached the plea
agreement by moving only for a two-level downward departure for
substantial assistance. Because Budd has asserted that he was
sentenced in violation of law, he has stated an appealable question
under 18 U.S.C. § 3742(a). Although Budd has stated an appealable
question, we find that his claims fail. Budd cannot assert a
Booker claim challenging his original sentence in the context of an
appeal from resentencing pursuant to Rule 35(b). See United
States v. Taylor, 414 F.3d 528, 535 (4th Cir. 2005). Budd
challenged his sentence in appeal from the original judgment, see
Budd, 3 F. App’x at 154, and his conviction became final on
October 1, 2001, when the Supreme Court denied his petition for a
writ of certiorari. See Allen v. Hardy, 478 U.S. 255, 258 n.1
(1986) (“By final we mean where the judgment of conviction was
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rendered, the availability of appeal exhausted, and the time for
petition for certiorari had elapsed . . . .”). 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). Finally, our review of the
record leads us to conclude that the Government did not breach the
plea agreement by moving for a downward departure of only two
levels under Rule 35(b).
Accordingly, we affirm. 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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