                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4821



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DENNIS WAYNE SIMMONS,

                                            Defendant - Appellant.


Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. James C. Turk, Senior
District Judge. (CR-03-97)


Submitted:   February 18, 2005              Decided:    May 27, 2005


Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.


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by unpublished per curiam opinion.


Eric N. Strom, CAMPBELL, MILLER, ZIMMERMAN, Leesburg, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Joseph W. H.
Mott, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           A jury found Dennis Wayne Simmons guilty of one count of

conspiracy to possess and distribute less than 500 grams of cocaine

and less than 5 grams of methamphetamine, one count of distribution

of less than 500 grams of methamphetamine, and four counts of being

a controlled substance user in possession of a firearm.                  Simmons

was sentenced to 144 months’ imprisonment.                  Three days after

sentencing, the Supreme Court issued Blakely v. Washington, 124 S.

Ct. 2531 (2004).   Simmons filed a motion to reconsider.           He further

subsequently   voluntarily       dismissed   his   appeal    to   this   court.

Nearly three months after sentencing, the court considered the

motion to reconsider and found it was without jurisdiction to

change the sentence.      Simmons filed a notice of appeal from the

order   denying   the   motion    to   reconsider   and     the   judgment   of

conviction.    On appeal, Simmons contends his notice of appeal was

timely as to the judgment of conviction, despite the fact the

notice was filed more than ten days after the entry of judgment.

Simmons further argues the sentencing enhancements were improper

under Blakely.     While we affirm the convictions, we vacate and

remand the sentence with instructions.

           Although “the Federal Rules of Criminal Procedure do not

specifically provide for motions for reconsideration and prescribe

the time in which they must be filed,” Nilson Van & Storage Co. v.

Marsh, 755 F.2d 362, 364 (4th Cir. 1985), the Supreme Court has


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held that a motion for rehearing or reconsideration extends the

time for filing a notice of appeal in a criminal case if the motion

is filed before the order sought to be reconsidered becomes final.

See United States v. Ibarra, 502 U.S. 1, 4 n.2 (1991) (holding that

would-be appellants who file a timely motion for reconsideration

from a criminal judgment are entitled to the full time period for

noticing   the   appeal   after   the   motion   to   reconsider   has   been

decided); United States v. Dieter, 429 U.S. 6, 7-8 (1976) (same);

United States v. Healy, 376 U.S. 75, 77-79 (1964) (same); United

States v. Christy, 3 F.3d 765, 767 n.1 (4th Cir. 1993) (same).

           Simmons filed the motion to reconsider seven business

days after the oral pronouncement of the sentence.            See Fed. R.

Crim. P. 45 (computing time).      Thus, the motion was timely and was

filed before the sentence became final.          See, e.g., United States

v. Shank, 395 F.3d 466, 469 (4th Cir. 2005) (the seven day period

under Rule 35 runs from the imposition of the sentence).            Simmons

subsequently filed a timely notice of appeal after the motion to

reconsider was denied.     Thus, the notice of appeal was timely as to

the judgment of conviction and the order denying the motion to

reconsider.

           At sentencing, the district court added points to the

offense level for an amount of methamphetamine above what was found

by the jury, and additional points were added for possession of a

firearm. Simmons argued at sentencing this was in violation of the


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rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000).           In

his motion to reconsider, he argued the sentence was in violation

of the rule announced in Blakely v. Washington, 124 S. Ct. 2531

(2004).

             In United States v. Booker, 125 S. Ct. 738 (2005), the

Supreme Court held that the “Sixth Amendment is violated when a

district court, acting pursuant to the Sentencing Reform Act and

the   guidelines,   imposes   a   sentence   greater   than   the   maximum

authorized by the facts found by the jury alone.”       United States v.

Hughes, 401 F.3d 540, 546 (4th Cir. 2005).             The Supreme Court

further found enhanced sentences based upon facts found by the

court alone violated the Sixth Amendment.        Id.    Accordingly, the

guidelines were stripped of their mandatory nature.           The district

court’s discretion in issuing a sentence is not bound by the

guidelines. The guidelines are now advisory and the district court

may now impose a sentence within the range prescribed by the

statute of conviction, as long as the sentence is reasonable.           Id.

at 546-47.    Because the district court increased the offense level

for drug quantity and possession of a firearm and applied the

sentencing guidelines’ range as mandatory instead of advisory, we

must vacate the sentence and remand for resentencing.*


      *
      Simmons contends he may be sentenced only up to the maximum
for the least-punished drug offense on which that conspiracy is
based. See United States v. Rhynes, 196 F.3d 207, 238 (4th Cir.
1999), vacated in part on other grounds on reh’g en banc, 218 F.3d
310 (4th Cir. 2000). The jury found Simmons guilty of conspiracy

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              We further note that when the district court considered

Simmons’ motion to reconsider, it was without jurisdiction to

correct or modify the sentence.              See   Shank, 395 F.3d at 469

(jurisdiction to correct a sentence under Rule 35 must lapse seven

days after sentencing); United States v. Layman, 116 F.3d 105, 108

(4th Cir. 1997) (the district court may not simply reconsider the

application or interpretation of the sentence and the sentencing

guidelines after the imposition of sentence).

              We affirm the convictions and vacate and remand the

sentence for resentencing consistent with the rules announced in

Booker and Hughes.       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 IN PART, VACATED IN PART
                                          AND REMANDED WITH INSTRUCTIONS




to distribute both methamphetamine and cocaine.       The statutory
maximum sentence is the same for both drugs.       See 21 U.S.C. §
841(b)(1)(C) (2000). On remand, the court remains free to consider
the quantity of cocaine and methamphetamine, determined by a
preponderance of the evidence, attributed to Simmons. As stated
above, the range of imprisonment under the sentencing guidelines is
now advisory rather than mandatory.

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