United States v. Keyes

142 F. App'x 791

Opinion

PER CURIAM.

Darryl Keyes appeals the district court’s order granting the Government’s motion to reduce his sentence under Fed.R.Crim.P. 35(b) and reducing his sentence. We conclude Keyes’ claim under United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), challenging his original sentence is not properly before us in this appeal. A final judgment is one in which 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. 255, 258 n. 1, 106 S.Ct. 2878, 92 L.Ed.2d 199 (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). To the extent Keyes seeks to attack his original sentencing order under Booker, we are without jurisdiction to consider it because Keyes never appealed that order. Keyes may not revive his appeal from his original sentencing by appealing his reduced sentence imposed following a Rule 35(b) proceeding. To the extent Keyes attacks the reduced sentence, we find no violation of Booker.

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