United States v. Franks ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60103
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FREDERICK FRANKS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:93-CR-116-S
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January 4, 2002
Before DUHÉ, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:1
Frederick Franks, federal prisoner number 09941-042, has
appealed the amended judgment entered by the district court
pursuant to this court's remand order in United States v. Franks,
230 F.3d 811, 814-15 (5th Cir. 2000). Franks contends that he
should have been completely resentenced, i.e., that a new
presentence report ("PSR") should have been prepared, that he
should have had an opportunity to raise objections to the PSR based
upon changes in the law since his original sentence, that he should
have had an opportunity to present evidence challenging the
probation officer's findings, that he should have had an
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Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
opportunity for allocution, and that he should have been provided
with appointed counsel. These contentions are without merit.
A defendant's presence is not required at a proceeding which
involves a reduction or correction of a sentence under 18 U.S.C.
§ 3582(c)(1)(B). See Fed. R. Crim. P. 43(c)(4) & Advisory
Committee Notes (1998 Amendments); see also United States v. Lopez,
26 F.3d 512, 515 n.4 (5th Cir. 1994); 28 U.S.C. § 2255. Because
the district court merely modified Franks's existing sentence,
under 28 U.S.C. § 2255 and 18 U.S.C. § 3582(c)(1), Franks was not
entitled to be present and to allocute. See United States v.
Patterson, 42 F.3d 246, 248-49 (5th Cir. 1994); United States v.
Shubbie, 778 F.2d 199, 200 (5th Cir. 1985). Nor was he entitled to
assistance of counsel. See United States v. Whitebird, 55 F.3d
1007, 1010-11 (5th Cir. 1995) (holding that defendant had no
statutory right to appointed counsel in connection with motion to
modify sentence under 18 U.S.C. § 3582(c)(2)). The district court
did not abuse its discretion in resentencing Franks. See United
States v. Mueller, 168 F.3d 186, 188 (5th Cir. 1999) (standard of
review).
Franks contends: (1) that the district court abused its
discretion in imposing an order of restitution; (2) that the
district court erred in enhancing his sentence for obstruction of
justice under the rule in Apprendi v. New Jersey, 530 U.S. 466(2000); (3) that the district court erred by admitting prejudicial
evidence; (4) that his convictions should be reversed because of
flaws in the district court's jury instructions; (5) that he was
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deprived of his right to a fair trial by Government misconduct; and
(6) that he received ineffective assistance of counsel. We do not
consider these issues as they are outside the scope of this court's
mandate in its remand order.
The amended judgment is AFFIRMED.
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