                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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