                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4899



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


KEITH ANTHONY BUDD,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (CR-
98-519-DKC)


Submitted:   October 31, 2006             Decided:   December 4, 2006


Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael D. Montemarano, MICHAEL D. MONTEMARANO, P.A., Elkridge,
Maryland, for Appellant.      Rod J. Rosenstein, United States
Attorney, Stephen M. Schenning, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Keith Anthony Budd pled guilty, pursuant to a plea

agreement, to conspiring to distribute and possess with intent to

distribute a quantity of marijuana and cocaine, in violation of 21

U.S.C. § 846 (2000).          After we affirmed Budd’s conviction and

dismissed the appeal of the sentence based on his waiver of

appellate rights in the plea agreement, see United States v. Budd,

3 F. App’x 153 (4th Cir. 2001) (No. 00-4329), the Government filed

a motion under Fed. R. Crim. P. 35(b) to reduce Budd’s sentence.

The district court granted the Government’s motion and entered an

amended judgment sentencing Budd to 108 months of imprisonment.

Budd       appeals,   contending   that   the    district    court    abused   its

discretion by failing to grant a greater departure and by failing

to sentence him anew in accordance with United States v. Booker,

543 U.S. 220 (2005).           Budd also asserts that the Government

breached the plea agreement by seeking only a two-level downward

departure.*      We affirm.

               “[A]ppeals   from   rulings      on   Rule   35(b)    motions   are

governed by 18 U.S.C. § 3742 [(2000)].” United States v. Hartwell,

448 F.3d 707, 712 (4th Cir. 2006) (citing United States v. Pridgen,

64 F.3d 147, 149 (4th Cir. 1995)), cert. denied, 75 U.S.L.W. 3174


       *
      To the extent that Budd also attempts to challenge in this
appeal the Government’s failure to move for a downward departure in
the original sentencing proceedings, he may not do so. See United
States v. Aramony, 166 F.3d 655, 661 (4th Cir. 1999) (discussing
doctrine of law of the case).

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(U.S. Oct. 2, 2006) (No. 06-6076).        This court does not have

“jurisdiction to review the extent of the district court’s downward

departure, except in instances in which the departure decision

resulted in a sentence imposed in violation of law or resulted from

an incorrect application of the Guidelines.”       United States v.

Hill, 70 F.3d 321, 324 (4th Cir. 1995).    If a defendant “alleg[es]

that his otherwise final sentence was imposed in violation of

law[,] [h]e may make that claim in appealing a ruling on a Rule

35(b) motion.”   Hartwell, 448 F.3d at 713.

          Budd claims that he should have been resentenced in

accordance with Booker and that the Government breached the plea

agreement by moving only for a two-level downward departure for

substantial assistance.      Because Budd has asserted that he was

sentenced in violation of law, he has stated an appealable question

under 18 U.S.C. § 3742(a).    Although Budd has stated an appealable

question, we find that his claims fail.       Budd cannot assert a

Booker claim challenging his original sentence in the context of an

appeal from resentencing pursuant to Rule 35(b).         See United

States v. Taylor, 414 F.3d 528, 535 (4th Cir. 2005).           Budd

challenged his sentence in appeal from the original judgment, see

Budd, 3 F. App’x at 154, and his conviction became final on

October 1, 2001, when the Supreme Court denied his petition for a

writ of certiorari.   See Allen v. Hardy, 478 U.S. 255, 258 n.1

(1986) (“By final we mean where the judgment of conviction was


                                - 3 -
rendered, the availability of appeal exhausted, and the time for

petition   for   certiorari   had    elapsed   .   .   .   .”).   A   later

modification to a sentence does not affect the date on which the

judgment of conviction became final. See United States v. Sanders,

247 F.3d 139, 143 (4th Cir. 2001).          Finally, our review of the

record leads us to conclude that the Government did not breach the

plea agreement by moving for a downward departure of only two

levels under Rule 35(b).

           Accordingly, we affirm.      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.

                                                                  AFFIRMED




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