                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4062


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTONIO DONTE SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Frank D. Whitney,
Chief District Judge. (3:13-cr-00011-FDW-DCK-1)


Submitted:   January 27, 2016             Decided:   February 1, 2016


Before KING, WYNN, and THACKER, Circuit Judges.


Affirmed   in  part,   vacated   in  part,   and      remanded   with
instructions by unpublished per curiam opinion.


Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Arden, North
Carolina, for Appellant.   Jill Westmoreland Rose, Acting United
States Attorney, Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     A jury convicted Antonio Donte Smith of Hobbs Act robbery

(Count 1), in violation of 18 U.S.C. § 1951 (2012); brandishing

a firearm during a crime of violence (Count 2), in violation of

18 U.S.C. § 924(c)(1)(A)(ii) (2012); and possession of a firearm

by a felon (Count 3), in violation of 18 U.S.C. § 922(g)(1)

(2012).     At the first sentencing hearing, the district court

concluded     that       Smith   did    not    qualify   as    an   armed   career

criminal, see 18 U.S.C. § 924(e) (2012), and sentenced him to

concurrent 63-month terms of imprisonment on Counts 1 and 3 plus

a consecutive 84-month term of imprisonment on Count 2, for a

total sentence of 147 months’ imprisonment.                   Before the district

court   entered      a    written      judgment,   the   Government    moved   for

reconsideration of the sentence under Fed. R. Crim. P. 35(a).

Seventy days after the original sentencing hearing, the district

court conducted a second hearing, classified Smith as an armed

career criminal, and sentenced him to concurrent 188-month terms

of imprisonment on Counts 1 and 3 plus a consecutive 84-month

term of imprisonment on Count 2, for a total sentence of 272

months’ imprisonment.

     On appeal, Smith argues that the district court plainly

erred when it resentenced him as an armed career criminal in




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January 2015. 1       The Government concedes that the district court

lacked jurisdiction to rule on its motion at the time of that

ruling.

       The     Federal       Rules     of     Criminal         Procedure       “provide[]

sentencing courts with a narrow window of [14] days within which

to    correct    arithmetical,        technical,         or    other    clear     error.” 2

United      States    v.   Shank,     395    F.3d       466,   468   (4th      Cir.    2005)

(internal quotation marks omitted); see Fed. R. Crim. P. 35(a).

For    purposes       of   this      rule,       “‘sentencing’         means    the     oral

announcement of the sentence.”                   Fed. R. Crim. P. 35(c).               “Rule

35(a)[] establishes a [14]-day jurisdictional limit.”                                 Shank,

395 F.3d at 470.           If the district court does not rule on the

motion       within    the     relevant          time    period,       the     motion     is

“effectively denied.”          Id.

       We conclude that the district court lacked jurisdiction to

rule on the Rule 35(a) motion and resentence Smith at the time

of    the    second   sentencing       hearing.          When    the    district       court

lacked       jurisdiction      to     impose       a     different       sentence,       the


       1
       Smith   asserted  additional arguments  regarding  his
convictions in his opening brief, but he explicitly abandoned
those issues in his reply brief.
       2
       At the time of the Shank              decision, the rule provided seven
days for the district court to                act. See Fed. R. Crim. P. 35(c)
(2004). The rule was amended                 in 2009 to extend the time to 14
days. See Fed. R. Crim. P. 35                advisory committee’s note on 2009
amendments.



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appropriate remedy is to vacate the sentence and remand with

instructions to reinstate the original sentence.                         United States

v. Schafer, 726 F.2d 155, 158 (4th Cir. 1984) (“The trial judge

was   without     jurisdiction       to    reduce     Schafer’s     sentence       [under

former Rule 35(b)].            We, therefore, hold that reinstatement of

the original sentence is an appropriate remedy.”); cf. United

States    v.    Jones,      238   F.3d     271,    273   (4th    Cir.    2001)     (“[W]e

conclude       that   the    district      court    lacked      authority     to   amend

Jones’ criminal judgment . . . .                   We therefore vacate the order

of the district court amending Jones’ sentence and remand with

instructions to reinstate the original sentence.”).

      Accordingly, we vacate the district court’s judgment as to

Smith’s    sentence      and      remand    with    instructions        to   impose   the

sentence announced at the October 29, 2014, sentencing hearing.

We affirm Smith’s convictions.                   We dispense with oral argument

because the facts and legal contentions are adequately presented

in the materials before this court and argument would not aid

the decisional process.

                                                                  AFFIRMED IN PART;
                                                                   VACATED IN PART;
                                                                       AND REMANDED
                                                                  WITH INSTRUCTIONS




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