UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                   No. 98-4227
BEVERLY FORDE, a/k/a Margaret
Hescott, a/k/a Cynthia Taylor,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-92-429-A)

Submitted: October 13, 1998

Decided: November 17, 1998

Before MICHAEL and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Dismissed in part and affirmed in part by unpublished per curiam
opinion.

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COUNSEL

Cheryl J. Sturm, Westtown, Pennsylvania, for Appellant. Helen F.
Fahey, United States Attorney, Thomas H. McQuillan, Assistant
United States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Beverly Forde seeks to appeal from the district court's order deny-
ing her motion filed under 28 U.S.C.A. § 2255 (West 1994 & Supp.
1998) and her motion for a downward departure. We have reviewed
the record and the district court's opinion and find no reversible error.
Therefore, we deny a certificate of appealability and dismiss the
appeal in part and affirm in part.

Following a jury trial, Beverly Forde was convicted of conspiracy
to possess with intent to distribute cocaine in violation of 21 U.S.C.
§ 846 (1994), and of conducting a continuing criminal enterprise
(CCE) in violation of 21 U.S.C. § 848 (1994), and sentenced to life
imprisonment. On direct appeal, this Court affirmed Forde's CCE
conviction but vacated her conspiracy conviction as violating the
Double Jeopardy Clause. See United States v. Forde, No. 93-5197,
1993 WL 341083, at *1 (4th Cir. Sept. 8, 1993) (unpublished).
Because the length of Forde's sentence of imprisonment had not
changed by vacating the conspiracy conviction, we did not remand
the case for resentencing.

Forde subsequently filed a combined motion to vacate, set aside,
or correct her sentence pursuant to § 2255 and a motion to modify her
sentence pursuant to 18 U.S.C. § 3582(c)(2) (1994). In her § 2255
motion, Forde raised various ineffective assistance of counsel claims
and a Fifth Amendment claim. In her § 3582 motion, Forde moved for
a reduction in sentence based on Amendment 505 of the United States
Sentencing Guidelines (USSG or "Guidelines"), which would reduce
Forde's base offense level from 42 to 38.1
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1 After Forde was sentenced and her conviction was affirmed amend-
ment 505 to USSG § 2D1.1(c) was adopted. See United States Sentenc-
ing Guidelines Manual (USSG) App. C, amend. 505 (Nov. 1, 1994). It

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In its memorandum opinion dated August 29, 1997, the district
court denied Forde's § 2255 motion on the merits, but granted her
§ 3582 motion holding that she was entitled to be resentenced pursu-
ant to Amendment 505 of the Guidelines. In its order accompanying
the memorandum opinion the district court expressly denied Forde's
§ 2255 motion, but failed to mention its disposition of her § 3582
motion.

Prior to resentencing pursuant to § 3582(c)(2), Forde filed a motion
for a downward departure in her sentence from the applicable guide-
line range. At resentencing, on February 27, 1998, the court held that
based on Amendment 505 of the Guidelines, Forde was entitled to a
reduction in her base offense level from 40 to 38, and thus, sentenced
her to 360 months to life imprisonment. However, the court denied
her request for a downward departure.

On March 5, 1998, Forde filed a notice of appeal from "the final
order entered in the above captioned matters on February 27, 1998."
However, on appeal she raises issues with respect to both the district
court's February 27, 1998, order denying her request for a downward
departure and the district court's August 29, 1997 order denying her
§ 2255 motion.

Forde filed her notice of appeal on March 5, 1998, nearly six
months after the court entered its order denying her§ 2255 relief.
Under Fed. R. App. P. 4(a)(5), a notice of appeal must be filed with
the clerk of the district court within 60 days after the entry of the
order appealed. See Browder v. Director, Dep't of Corrections, 434
U.S. 257, 264 (1978) (quoting United States v. Robinson, 361 U.S.
220, 229 (1996)). The time limits of Fed. R. App. P. 4(a) are "manda-
tory and jurisdictional." Id.

Forde contends that the district court's August 29, 1997, order was
not a final, appealable order because the § 3582(c)(2) segment of her
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gives a court authority to modify a sentence under§ 3582(c)(2), see
USSG § 1B1.10(a), and sets the upper limit of the Drug Quantity Table
in § 2D1.1 at level 38. Id. The amendment was made retroactive by the
Sentencing Commission. See USSG § 1B1.10(c).

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§ 2255 motion was granted and resentencing was ordered. Although
Forde filed one motion seeking relief under both§ 2255 and
§ 3582(c)(2), the district court treated her§ 2255 motion wholly sepa-
rate from her § 3582 motion. The district court's August 29, 1997,
order explicitly denied Forde's § 2255 motion. Therefore, we find that
it was a final appealable order and her appeal was untimely.2

Forde also appeals from the court's denial of her motion for a
downward departure at resentencing. She contends that she is entitled
to a downward departure because of the collateral consequences of
her status as a deportable alien, her willingness to stipulate to her
alienage and deportability, and her post-sentencing rehabilitative
efforts.

A § 3582(c)(2) resentencing is a not a de novo resentencing pro-
ceeding, but merely a form of limited remand. United States v.
Cothran, 106 F.3d 1560, 1562 (11th Cir. 1997) (holding that
"§ 3582(c)(2) and related sentencing guidelines do not contemplate a
full de novo resentencing"); United States v. Torres, 99 F.3d 360, 361
(10th Cir. 1996), cert. denied, 65 U.S.L.W. 3630 (U.S. Mar. 17, 1997)
(No. 96-7743). "In determining the amended guideline range under
. . . [USSG § 1B1.10(b)], the court shall substitute only the [retroac-
tive] amendment[ ] . . . for the corresponding guideline provisions that
were applied when the defendant was sentenced. All other guideline
application decisions remain unaffected." USSG§ 1B1.10, comment.
(n.2) (Nov. 1, 1994). We therefore find that the district court should
have declined to re-examine whether a downward departure was war-
ranted at resentencing.

Accordingly, we deny a certificate of appealability and dismiss the
appeal as to the § 2255 claims and affirm the denial of Forde's motion
for downward departures in sentencing. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid in the
decisional process.

DISMISSED IN PART; AFFIRMED IN PART
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2 Alternatively, we find that Forde failed to make a "substantial show-
ing of the denial of a constitutional right" on her § 2255 claims, and
therefore, is not entitled to a certificate of appealability. 28 U.S.C.
§ 2253(c)(1), (2) (1994).

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