                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4308


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

NATHANIEL LEE SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:10-cr-00216-AW-1)


Submitted:   December 26, 2013            Decided:   January 15, 2014


Before DUNCAN, DAVIS, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David W. Lease, SMITH, LEASE & GOLDSTEIN, LLC, Rockville,
Maryland, for Appellant.     Rod J. Rosenstein, United States
Attorney, Mara Z. Greenberg, Assistant United States Attorney,
Molly E. Thebes, Special Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Nathaniel        Lee   Smith       appeals    the    district        court’s

amended    judgment        sentencing        him       to   seventy-eight          months’

imprisonment and recommending that he receive credit for time

served for prior periods of incarceration. *                       On appeal, Smith

argues that the district court violated Federal Rule of Criminal

Procedure 43 by issuing the amended judgment without holding a

hearing at which he was present.                      Finding no reversible error,

we affirm.

              A    criminal     defendant        is   entitled    to    be   present   at

every stage of his trial, including sentencing and resentencing.

Fed. R. Crim. P. 43(a)(3); see United States v. Salim, 690 F.3d

115, 122 (2d Cir. 2012).               “A defendant’s right to be present

when the district court alters his sentence depends on the type

of   action       the   district     court   is       taking.”    United      States   v.

Patterson, 42 F.3d 246, 248 (5th Cir. 1994).                           “A defendant is

entitled to be present when the district court is imposing a new

sentence      after      the    original     sentence       has    been      set   aside;

however, a defendant does not have a right to be present when

his sentence is merely modified by the district court.”                            United


      *
       In the original judgment, the district court imposed a
seventy-eight-month sentence of imprisonment but recommended
that Smith receive credit for time served for a longer period of
incarceration.



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States v. Erwin, 277 F.3d 727, 731 (5th Cir. 2001); see United

States v. Hadden, 475 F.3d 652, 667-68 (4th Cir. 2007); United

States v. Arrous, 320 F.3d 355, 359 (2d Cir. 2003).

           We conclude that, in this case, the district court did

not   conduct   a     resentencing.        The    Federal         Bureau    of    Prisons

(“FBOP”), as delegated by the Attorney General, has the sole

authority to award credit for time served prior to sentencing.

See 18 U.S.C. § 3585(b)(1) (2012); United States v. Wilson, 503

U.S. 329, 333-37 (1992).            In the amended judgment, the district

court   here    simply       modified    its     recommendation        to    the     FBOP

regarding credit for time served and reimposed the remainder of

the original judgment; the original judgment was not vacated or

set aside.      Thus, Smith was not entitled under Rule 43 to be

present for imposition of the amended judgment.

           Accordingly,        we   affirm       the    amended      judgment.         We

dispense   with       oral    argument     because          the    facts    and     legal

contentions     are    adequately       presented      in    the   materials       before

this court and argument would not aid the decisional process.



                                                                                 AFFIRMED




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