                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 04-4956



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ALAN ANDREW SARVIS,

                                             Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(CR-02-3-AW)


Submitted:   July 27, 2005                 Decided:   August 9, 2005


Before LUTTIG and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed by unpublished per curiam opinion.


Edward C. Sussman, Washington, D.C., for Appellant. Allen F.
Loucks, United States Attorney, Patrick M. Pericak, Special
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Pursuant to a plea agreement, Alan Andrew Sarvis pled

guilty to conspiracy to distribute and possess with intent to

distribute controlled substances, in violation of 21 U.S.C. § 846

(2000).    Under the terms of his plea agreement, Sarvis waived the

right to appeal his conviction and sentence.               He was sentenced on

June 28, 2002, to 262 months’ imprisonment.                    Based on Sarvis’

substantial assistance, the Government moved for a four-level

downward departure in Sarvis’ sentence. After conducting a hearing

pursuant to Fed. R. Crim. P. 35(b), the court resentenced Sarvis in

October    2004    to   168   months’     imprisonment.        He   now   seeks   to

challenge his sentence under United States v. Booker, 125 S. Ct.

738 (2005).

            Although the Government argues that Sarvis’ appeal is

barred by the waiver of his right to appeal in his plea agreement,

we find that, in any event, Sarvis cannot assert a Booker claim in

the context of an appeal from resentencing pursuant to Rule 35(b).

A final judgment is one where the judgment of conviction has been

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

petitioning the Supreme Court for certiorari has expired. Allen v.

Hardy, 478 U.S. 255, 258 n.1 (1986).               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).           To the extent Sarvis seeks to revisit


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his   original    sentence    under   Booker,     his    appeal   is    untimely.

Sarvis’ judgment became final upon the expiration of the ten-day

period to appeal his sentence, i.e., July 8, 2002.                Sarvis cannot

now resurrect his direct appeal simply because the district court

resentenced him pursuant to a Rule 35(b) proceeding.

              Furthermore, it is well established that this court does

not review a defendant’s appeal of the extent of a downward

departure unless the departure resulted in an illegal sentence or

resulted from an incorrect application of the guidelines.                 United

States v. Hill, 70 F.3d 321, 324 (4th Cir. 1995) (citing 18

U.S.C. § 3742(a) (2000)). Finding neither circumstance present, we

dismiss this appeal.         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.

                                                                        DISMISSED




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