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.

-------------------- Appeal from the United States District Court for the Northern District of Mississippi USDC No. 1:93-CR-116-S -------------------- 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,

(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

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

(c)(1)(B). See Fed. R. Crim. P. 43(c)(4) & Advisory

Committee Notes (1998 Amendments); see also United States v. Lopez,

, 515 n.4 (5th Cir. 1994);

. Because

the district court merely modified Franks's existing sentence,

under

and

(c)(1), Franks was not

entitled to be present and to allocute. See United States v.

Patterson,

(5th Cir. 1994); United States v.

Shubbie,

(5th Cir. 1985). Nor was he entitled to

assistance of counsel. See United States v. Whitebird,

(5th Cir. 1995) (holding that defendant had no

statutory right to appointed counsel in connection with motion to

modify sentence under

(c)(2)). The district court

did not abuse its discretion in resentencing Franks. See United

States v. Mueller,

(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,

(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

2 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.

3