                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4278


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

THOMAS NEIL PICKETT,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:04-cr-00047-F-1)


Submitted:   February 26, 2013                  Decided:   March 5, 2013


Before MOTZ and    SHEDD,   Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Seth A. Neyhart, STARK LAW GROUP, PLLC, Chapel Hill, North
Carolina, for Appellant.     Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Yvonne V. Watford-McKinney,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Thomas Neil Pickett appeals from the district court’s

order granting the government’s unopposed motion for entry of an

amended judgment.                He contends that the district court erred by

not    holding        a    full     resentencing        hearing    to    revisit    issues

concerning the drug quantity attributable to him, his request

for    a   downward             departure,     and     the   reasonableness        of     his

sentence.        We affirm the district court’s order entering the

amended judgment.

             Pickett was convicted of possession of firearms by a

felon,     use   of       a     firearm    during      and   in   relation   to    a     drug

trafficking crime, distribution of cocaine base, and conspiracy

to    distribute          five    or    more   grams    of   cocaine     base.      He    was

sentenced to a total of 352 months’ imprisonment.                          Following the

amendments       to       the    crack    cocaine      Guidelines,      Pickett    filed    a

motion for, and was granted, a reduction in his sentence from

292 months to 235 months on the drug charges.

             In September 2011, the district court for the Eastern

District of Texas — where Pickett was serving his sentence —

granted Pickett’s motion pursuant to 28 U.S.C.A. § 2241 (West

Supp. 2012), and vacated Pickett’s conviction and sentence on

the charge of using and carrying a firearm in relation to a drug

trafficking offense.                   The Texas court transferred the case to

the Eastern District of North Carolina “for appropriate action.”

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           The district court, upon receiving the case from the

Texas   court,    appointed    counsel        for   Pickett    and    directed     the

parties to submit their positions as to whether the court should

conduct a full resentencing.             Pickett filed a pro se motion for

modification of his sentence pursuant to the recent amendment to

the crack cocaine Guidelines, and in that motion, requested that

the court re-calculate his Guideline range, consider his post-

sentencing rehabilitation, and conduct a full resentencing.                        In

response to the court’s order, the Government filed a unopposed

motion for entry of an amended judgment.                  The motion notes that

Pickett’s attorney had no objection to the motion.

           The     district     court         denied   Pickett’s       motion     for

modification of his sentence, noting that he had previously been

granted a reduction of sentence based on the amendments to the

crack   cocaine      Guidelines.           The      court     also    granted     the

Government’s unopposed motion to enter an amended judgment.                        In

the amended judgment, the district court noted that Pickett’s

conviction and sentence under Count 2 had been vacated by the

Texas district court.         The court also determined that Pickett’s

conviction   under    Count    1   was    no     longer     valid    due   to   United

States v. Simmons, 649 F.3d 237 (4th Cir. 2011).                           The court

noted that the statutory maximum for Counts 3 and 4 was reduced

to 240 months, resulting in Pickett’s Guidelines range being



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narrowed to 235-to-240 months.                  The court then ratified the 235-

month sentence previously imposed.

              Pickett appeals from the amended judgment, contending

that    the    court       should      have     conducted             a    full       resentencing

hearing.        He     also      contends       that        the       sentence         imposed      is

unreasonable.

              This    court      has    held        that    a    defendant         need      not   be

present when the court corrects a sentence by striking from the

sentence      those    terms      which    are       unlawful          and      re-entering        the

judgment with only the lawful terms from the original judgment.

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

2007) (citing United States v. Erwin, 277 F.3d 727, 730 (5th

Cir.    2001)).        Here,      the     district         court          did   not     alter      the

sentencing      terms       imposed       at        Pickett’s          original         sentencing

hearing.        Rather,          the    court        entered          an     amended        judgment

reflecting      that       the     district         court        in       Texas       had   vacated

Pickett’s conviction under Count 2, and also to reflect that

Pickett’s conviction and sentence for Count 1 were no longer

valid due to this Court’s decision in Simmons.                                        Because the

order   entered       by   the     district         court       was       for   the    purpose      of

correcting the judgment, rather than imposing a new sentence, a

sentencing hearing was not required under these circumstances.

See Hadden, 475 F.3d at 667.



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               Pickett’s       remaining       claims      are        foreclosed      by     the

mandate    rule,       which    bars     relitigation           of     issues   previously

decided by the appellate court.                     United States v. Bell, 5 F.3d

64, 66-67 (4th Cir. 1993); see Doe v. Chao, 511 F.3d 461, 465

(4th    Cir.    2007)    (mandate       rule       provides     that    “any    issue       that

could have been but was not raised on appeal is waived and thus

not remanded.”) (internal quotation marks omitted).                                Moreover,

these     claims      were     waived    by        Pickett’s      concurrence         in    the

Government’s unopposed motion for entry of an amended judgment,

in which it was conceded that there would be “no jurisdictional

impediment” to district court’s entry of an 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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