UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4886
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHARLES TYRONE BLACKSHEAR,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:03-cr-00215-FDW-DCK-1)
Submitted: September 22, 2011 Decided: October 14, 2011
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Asheville,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Adam Morris, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Tyrone Blackshear appeals a district court’s
amended judgment granting his motion to modify his sentence
based on errors in the determination of his Sentencing
Guidelines sentence and resentencing him to a lower sentence.
On appeal, Blackshear claims the case should be dismissed and
his judgment vacated based on prosecutorial misconduct,
ineffective assistance of counsel and judicial misconduct. We
find that Blackshear’s claim that he suffered from a miscarriage
of justice is without merit and we find no reason to vacate the
amended judgment or to dismiss the charges. Blackshear also
claims that he is entitled to relief because the Government’s
notice under 18 U.S.C. § 851(a) (2006) stating that Blackshear
was eligible for an increased statutory sentence was defective.
We affirm.
In November 2003, Blackshear pled guilty without a
plea agreement to three counts of possessing with intent to
distribute an unknown quantity of crack cocaine (Counts One, Two
and Three), one count of possessing with intent to distribute an
unknown quantity of cocaine and fifty grams of cocaine base
(Count Four), one count of using and carrying a firearm in
relation to a drug trafficking crime (Count Five) and one count
of possession of a firearm by a convicted felon (Count Six).
The Government notified Blackshear under 21 U.S.C. § 851 (2006),
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that he was exposed to a statutory maximum sentence of life for
Count Four based upon two prior drug convictions. Blackshear
ultimately received a sentence below the statutory life sentence
because the Government filed a motion under U.S. Sentencing
Guidelines § 5K1.1 noting his substantial assistance. This
court affirmed Blackshear’s sentence. See United States v.
Blackshear, No. 07-4794, 2008 WL 1697235 (4th Cir. Apr. 10,
2008) (unpublished).
Blackshear filed a motion in the district court to
modify his sentence based on errors in the determination of his
Guidelines sentence. The alleged errors were not raised at his
sentencing hearing or on appeal. The district court ordered
that a revised presentencing investigation report be prepared
taking into consideration one of the alleged errors. A
resentencing hearing was held between September 8, 2009 and
September 10, 2009, at which Blackshear raised issues not raised
in his motion to modify his sentence. The Government renewed
its request for a sentence below the statutory minimum based on
Blackshear’s substantial assistance. While the court addressed
the merits of Blackshear’s issues, it acknowledged the issues
were waived because Blackshear did not raise the issues at his
initial sentencing. Blackshear was resentenced to a term of
imprisonment far below what he received at his initial
sentencing.
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We take note that the district court was without
authority to resentence Blackshear based on the motion to modify
the sentence. The district court’s authority to modify a
sentence is limited and “[t]he law closely guards the finality
of criminal sentences against judicial ‘change of heart.’”
United States v. Goodwyn, 596 F.3d 233, 235 (4th Cir. 2010).
Under 18 U.S.C. § 3582(c) (2006), a district court “may not
modify a term of imprisonment once it has been imposed” unless
the Bureau of Prisons moves for a reduction, the Sentencing
Commission amends the applicable Guidelines range, or another
statute or Rule 35 expressly permits the court to do so.
However, we will not disturb the court’s resentencing decision
because it was not challenged by the Government. See
Greenlaw v. United States, 554 U.S. 237, 244-45 (2008).
Blackshear claims that the Government’s § 851 notice
was defective. He did not raise this issue at his initial
sentence or on appeal. Accordingly, review is for plain error.
See United States v. Massenberg, 564 F.3d 337, 341-42 (4th Cir.
2009) (failure to raise issue at sentencing is reviewed for
plain error). In order to satisfy the plain error standard
Blackshear must show: (1) an error was made; (2) the error is
plain; and (3) the error affects substantial rights. United
States v. Olano, 507 U.S. 725, 732 (1993). The decision to
correct the error lies within this court’s discretion, which
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should be exercised “only if the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings.” Massenberg, 564 F.3d at 343 (internal quotation
marks omitted).
Under this court’s recent opinion in United States v.
Simmons, 649 F.3d 237 (4th Cir. 2011), the Government’s § 851
notice, if issued today, may be defective. We note, however,
that at the time it was issued and at Blackshear’s resentencing,
the notice was proper and effective under this court’s case law.
As a result of Simmons and Blackshear’s assertions at
resentencing, there may have been error with the notice and the
error may be plain. This court will not notice the error
because Blackshear first raised the issue at an unauthorized
resentencing hearing at which he received a sentence that was
far below the statutory sentence authorized by the § 851 notice
and was not above the statutory maximum sentence then authorized
by 21 U.S.C. § 841(b)(1)(A) (2006). We note that the mandate
issued after this court’s opinion affirming his convictions and
sentence has not been recalled.
Accordingly, we affirm the district court’s amended
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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