                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 06-4030



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellant,

          versus


JOHN J. PHILLIPS,

                                                Defendant - Appellee.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CR-04-448)


Submitted:   August 4, 2006                 Decided:   August 14, 2006


Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.


Vacated and remanded with instructions by unpublished per curiam
opinion.


Paul J. McNulty, United States Attorney, Stephanie Bibighaus
Hammerstrom, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellant. Edward S.
Rosenthal, Cary S. Greenberg, Caroline E. Costle, Lana M. Manitta,
RICH, GREENBERG, ROSENTHAL & COSTLE, L.L.P., Alexandria, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     John J. Phillips pled guilty to one count of wire fraud in

violation of 18 U.S.C. § 1343 and was sentenced to 46 months of

imprisonment, the low end of the appropriate guidelines range.               On

Phillips’ motion for reconsideration, the district court modified

his sentence to 30 months of imprisonment based on his “age and his

health related difficulties.”               J.A. 154.    The government now

appeals, arguing that the district court was without authority to

modify Phillips’ sentence.        We vacate the modified sentence and

remand with instructions to impose the sentence as originally

pronounced.

     Fed. R. Crim. P. 35(a) allows a district court to alter a

sentence   only   to   “correct     a       sentence    that    resulted   from

arithmetical, technical, or other clear error.”                The authority of

the district court to modify a sentence pursuant to Rule 35(a) is

limited.   See United States v. Layman, 116 F.3d 105, 108 (4th Cir.

1997).1    Rule 35(a) “is not intended to afford the court the

opportunity to reconsider the application or interpretation of the

sentencing guidelines or for the court simply to change its mind




     1
      Layman was decided under the former Rule 35(c), which has
since been amended and renamed as the current Rule 35(a).      The
advisory committee’s note to the relevant 2002 amendments provides
that “no change in practice is intended” by the slight change in
wording. United States v. Shank, 395 F.3d 466, 468 n.3 (4th Cir.
2005) (internal punctuation omitted).

                                        2
about    the   appropriateness    fo   the   sentence.”     Id.   (internal

punctuation omitted).

     Before pronouncing its original sentence, the district court

explicitly took into account Phillips’ age and health related

issues.    J.A. 128 (“Your doctors have outlined the serious health

issues that you have and your age 62”).         The district court later

modified Phillips’ sentence based solely upon his age and health.

J.A. 154.      We conclude that this modification was not prompted by

“arithmetical, technical, or other clear error,” Fed. R. Crim. P.

35(a), “but rather was the product of a change of heart by the

sentencing judge,” Layman, 116 F.3d at 109.2              Accordingly, the

modified sentence is improper.

        We therefore vacate the modified sentence and remand with

instructions to impose the sentence as originally pronounced.           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.



                                 VACATED AND REMANDED WITH INSTRUCTIONS




     2
      Notwithstanding Phillips’ arguments to the contrary, we find
no merit to his contention that United States v. Booker, 543 U.S.
220 (2005), altered our precedent regarding the modification of
sentences under Rule 35(a).

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