UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4321
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DARRYL KEYES, a/k/a Red, a/k/a Dun Dun,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-02-235)
Submitted: August 24, 2005 Decided: September 15, 2005
Before LUTTIG, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Dennis H. Curry, Spencer, West Virginia, for Appellant. Kasey
Warner, United States Attorney, John J. Frail, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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, 125 S. Ct. 738 (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 (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
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