US v. Nathaniel Smith, No. 13-4308 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4308 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NATHANIEL LEE SMITH, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:10-cr-00216-AW-1) Submitted: December 26, 2013 Decided: January 15, 2014 Before DUNCAN, DAVIS, and DIAZ, Circuit Judges. Affirmed by unpublished per curiam opinion. David W. Lease, SMITH, LEASE & GOLDSTEIN, LLC, Rockville, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Mara Z. Greenberg, Assistant United States Attorney, Molly E. Thebes, Special Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Nathaniel amended judgment Lee Smith sentencing appeals him to the district court s seventy-eight months imprisonment and recommending that he receive credit for time served for prior periods of incarceration. * On appeal, Smith argues that the district court violated Federal Rule of Criminal Procedure 43 by issuing the amended judgment without holding a hearing at which he was present. Finding no reversible error, we affirm. A criminal defendant is entitled to be present at every stage of his trial, including sentencing and resentencing. Fed. R. Crim. P. 43(a)(3); see United States v. Salim, 690 F.3d 115, 122 (2d Cir. 2012). A defendant s right to be present when the district court alters his sentence depends on the type of action the district court is taking. Patterson, 42 F.3d 246, 248 (5th Cir. 1994). United States v. A defendant is entitled to be present when the district court is imposing a new sentence after the original sentence has been set aside; however, a defendant does not have a right to be present when his sentence is merely modified by the district court. * United In the original judgment, the district court imposed a seventy-eight-month sentence of imprisonment but recommended that Smith receive credit for time served for a longer period of incarceration. 2 States v. Erwin, 277 F.3d 727, 731 (5th Cir. 2001); see United States v. Hadden, 475 F.3d 652, 667-68 (4th Cir. 2007); United States v. Arrous, 320 F.3d 355, 359 (2d Cir. 2003). We conclude that, in this case, the district court did not conduct a resentencing. The Federal Bureau of Prisons ( FBOP ), as delegated by the Attorney General, has the sole authority to award credit for time served prior to sentencing. See 18 U.S.C. ยง 3585(b)(1) (2012); United States v. Wilson, 503 U.S. 329, 333-37 (1992). court here simply In the amended judgment, the district modified its recommendation to the FBOP regarding credit for time served and reimposed the remainder of the original judgment; the original judgment was not vacated or set aside. Thus, Smith was not entitled under Rule 43 to be present for imposition of the amended judgment. Accordingly, dispense with contentions are oral we affirm argument adequately the amended because presented in the the judgment. facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 3
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