Affirmеd by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge WIDENER and Judge MOTZ joined.
OPINION
On appeal, Lynell Lynnie Taylor (Taylor) claims, inter alia, that he had a Sixth Amendment right to effective assistance of in connection with the government’s post-conviction, post-direct appeal motion to reduce his sentence pursuant to Federal Rule of Criminal Procedure 35(b), and that such right was violated when the district court ruled on the government’s Rule 35(b) motion without him having the benefit of counsel. Taylor’s claim raises the following issue of first impression in our circuit: Does a criminal defendant have a federal constitutional right to effective assistance of counsel with regard to a post-conviction, post-direct appeal motion for reduction of sentence made by the government pursuant to Federal Rule of Criminal Procedure 35(b)? We answer this question in the negative. We also find no merit to Taylor’s remaining assignments of error. Accordingly, we affirm.
I.
On March 27, 2000, a federal grand jury in the Eastern District of Virginia indicted Taylor in a multi-count, multi-defendant indictment. Count One charged Taylor and other named defendants with conspiracy to intentionally and knowingly possess with the intent to distribute and to distribute fifty grams or more of cocaine base (crack) in violation of 21 U.S.C. § 846. As part of the overt acts listed in Count One, the indictment charged that “[i]n or about July 1998, at Burnt Ordinary Apartments, James City County, in the Eastern District of Virginia, LYNELL LYNNIE TAYLOR, while armed with a ,9mm semi-automatic pistol, distributed quantities of ‘crack’ cocaine.” (J.A. 31). The indictment charged Taylor in. seven other counts regarding individual instances of crack dealing in violation of 21 U.S.C. § 841(a)(1).
The presentence report (PSR) calculated Taylor’s total offense level under the United States Sentencing Guidelines at thirty-six (base offense level of thirty-six based upon drug quantity, plus two levels for possession of a dangerous weapon, minus two levels for acceptance of responsibility) and his criminal history category at III, producing a sentencing range of 235 to 293 months’ imprisonment. On October 30, 2000, the district court sentenced Taylor to 235 months’ imprisonment. At that time, Taylor did not attempt to ' challengе his conviction or sentence on direct appeal.
Just less than one year after the district court sentenced Taylor, on October 15, 2001, the government moved to reduce Taylor’s . sentence pursuant to Federal Rule of Criminal Procedure 35(b)(1) (the government’s Rule 35(b) Motion). 2 The government’s Rule 35(b) Motion sought to reduce Taylor’s sentence based upon his substantial assistance to the government in investigating drug trafficking in the eastern Virginia area, but requested the district court to hold the motion “in abeyance until all of Mr. Taylor’s cooperation is complete, after which thе United States will file a supplement advising the court of the remainder of his cooperation.” (J.A. 137). Attached to the government’s Rule 35(b) Motion was a certificate of service providing that a copy of the motion was mailed to Taylor’s attorney, J. Ashton Wray, Jr., at “10-B W. Queens Way, P.O. Box 547, Hampton, VA 23669, and to U.S. Probation Officer Teresa R.' Hutcheson, Room 300, Post Office Bldg., 101 W. 25th, Newport News, VA 23607.” (J.A. at 138).
On October 17, 2001, the district court entered an order taking the government’s Rule 35(b) Motion under advisement for six .months “to permit defendant’s complete cooperation with the government.” (J.A. 139). The order directed thе Clerk of Court to send a copy of it to Taylor, Taylor’s counsel, and the government.
On April 30, 2002, the government filed its “SUPPLEMENT TO MOTION FOR SENTENCE REDUCTION BASED UPON SUBSTANTIAL ASSISTANCE” with a certificate of service providing that a copy was mailed to the same parties at the same addresses as the government’s Rule 35(b) Motion filed on October 15, 2001. On May 17, 2002, the district court granted the government’s Rule 35(b) Motion, reducing Taylor’s sentence by forty-percent to 141 months’ imprisonment. The district court effectuated its granting of the government’s Rule 35(b) Motion by entering a written order (the May 17, 2002 Order) providing as follows: “The court GRANTS the mdtion[ ] and ORDERS the sentence of Lynell Lynnie Taylor аs to
On August 7, 2002, Taylor filed an untimely pro se notice of appeal in which he sought to challenge the district court’s forty-percent reduction in his sentence as insufficient. In his handwritten notice of appeal, Taylor explained that he was unhappy with his new 141-month sentence for two reasons: (1) his lawyer had previously told him that his sentence would be reduced to at least 120 months’ impi-isonment; and (2) there were “a number of things that were not mentioned that was suppose to be mentioned.” (J.A. 144). Taylor also explained that one of his “main reasons” for appealing was that his attorney was incarcerated at the time the district court considered the government’s Rule 35(b) Motion. Id. After appointing counsel to represent Taylor on appeal, on January 13, 2003, we dismissed his appeal as untimely.
Taylor subsequently filed a § 2255 motion (Taylor’s § 2255 Motion), see 28 U.S.C. § 2255, attacking his new sentence on two grounds. First, Taylor claimed that he was denied effective assistance of counsel in regard to the government’s Rule 35(b) Motion. Second, Taylor claimed that he was unable to note a timely appeal from resentencing pursuant to the government’s Rule 35(b). Motion because his attorney was unavailable due to counsel’s incarceration.
On March 7, 2003, the district court dismissed Taylor’s § 2255 Motion for several reasons. First, thе district court reasoned that because it did not conduct a hearing on the government’s Rule 35(b) Motion nor request any response to the motion, Taylor’s counsel missed no opportunity to appear or respond. Second, citing
United States v. Pridgen,
Taylor timely appealed the district court’s dismissal of his § 2255 Motion. We subsequently granted Taylor a certificate of appealability and issued an unpublished opinion,
United States v. Taylor (Taylor I),
In Peak, this court held that counsel’s failure to pursue an appeal requested by a defendant constitutes ineffective assistance of counsel regardless of the likelihood of success on the merits. Id. at 42. Moreover, evеn if a defendant does not specifically instruct counsel to file anappeal, counsel may still have a duty to consult with his client about an appeal. Roe v. Flores-Ortega, 528 U.S. 470 , 478-80,120 S.Ct. 1029 ,145 L.Ed.2d 985 (2000).
Taylor I,
On remand, the district court granted Taylor relief on his § 2255 Motion. Specifically, the district court reinstated Taylor’s “right of appeal” with respect to the district court’s resentencing of him pursuant to the government’s Rule 35(b) Motion. (District Court Order filed January 22, 2004). 3 The district court effectuated such reinstatement by vacating Taylor’s judgment of conviction and immediately reentering it without change. The joint appendix contains a cоpy of the judgment of conviction with the October 30, 2000 “FILED” date crossed through, a date of “1/22/04” handwritten just below the crossed-through date, and the change initialed. (J.A. 158). Just below the handwritten change, the following typed notation appears: “SEE ORDER OF 1/22/04 VACATING and RE-ENTERING THIS JUDGMENT ON 1/22/04.” (J.A. 158).
Taylor filed a timely notice of appeal from the reentered judgment of conviction. Taylor is represented in this appeal by appointed counsel.
In the present appeal, Taylor asserts several assignments of error. He claims that the district court violated his Fifth Amendment Due Process rights by ruling on the government’s Rule 35(b) Motion without providing him notice of the motion and an opportunity to respond. Interestingly, he qualifies this claim by stating that “[it] is unclear whether [he] or his attorney received notice of the government’s [Rule 35(b) Motion].” (Taylor’s Br. at 32). Taylor also claims that he had a Sixth Amendment right to effective assistance of counsel in connection with the government’s Rule 35(b) Motion, which right was denied due to his counsel’s incarceration. Finally, he asserts a
Booker
claim,
see United States v. Booker,
— U.S. -,
H.
As a threshold matter, we need to address the parties’ cоnfusion regarding the nature of the judgment vacated and reentered by the district court on January 22, 2004. The parties are concerned that the reentered judgment actually reinstates Taylor’s original 235-month sentence. If such is the case, the government requests that we vacate such judgment and let the 141 month sentence stand. Taylor would also request that we vacate such judgment, but would urge us to vacate the district court’s order granting the government’s Rule 35(b) Motion and remand the case to allow for his full participation in the district court’s proceedings on the government’s Rule 35(b) Motion with the benefit of effective assistance of counsel.
The parties’ confusion squarely raises the question of whether the judgment vacated and reentered by the district court on January 22, 2004 sentences Taylor to 235 months’ imprisonment or 141 months’ imprisonment. In answering this question, we are mindful that “[t]he intent of the sentencing court must guide any retrospective inquiry into the term and nature of a sentence.”
United States v. Taylor,
To be sure, the district court could have been clearer regarding the precise nature and effect of its resentencing of Taylor pursuant to the government’s Rule 35(b) Motion and following our remand of Taylor’s § 2255 Motion. Nonetheless, our review of the entire record leaves us with the firm conviction that the district court amended the original judgment from 235 months’ imprisonment to 141 months’ imprisonment when it ruled on thе merits of the government’s Rule 35(b) Motion, and, therefore, when the district court granted Taylor relief on his § 2255 Motion by vacating and reentering Taylor’s judgment of conviction, such judgment was the amended version sentencing Taylor to 141 months’ imprisonment. The 235-month version of the judgment no longer existed.
While the district court did not expressly use the phrase “amend judgment” or “the judgment is amended” in its May 17, 2002 Order granting the government’s Rule 35(b) Motion and ordering Taylor’s sentence i-educed from 235 months’ imprisonment to 141 months’ imprisonment, all record evidence supports the conclusion that the district court intended for such order to amend the judgment in this manner. First, the May 17, 2002 Order was entered on the district court’s docket sheet as “AMENDED JUDGMENT ORDER: Lynell Lynnie Taylor (4) count(s) 1: 141 MONTHS -IMPRISONMENT. IN ALL OTHER RESPECTS, THE SENTENCE AS ORIGINALLY IMPOSED ON 10/30/00 REMAINS THE SAME.” (J.A. 9) (emphasis added). Second, this docket entry existed at the time the district court granted Taylor relief on his § 2255 Motion.
Third, the relief the district court granted Taylor on his § 2255 Motion (ie., the reinstatement of Taylor’s right to appeal from the district court’s final ruling on the government’s Rule 35(b) Motion “by VACATING his judgment of conviction and REENTERING the same judgment effective this date”) only makes sense if the judgment of conviction referenced in. the district court’s January 22, 2004 Order sentences Taylor to 141 months’ imprisonment. We have no doubt that thе district court, as we instructed, reconsidered Taylor’s § 2255 Motion on remand in light of Peak and Roe and, based upon such consideration, determined that Taylor was entitled to remedial relief under Title 28, United States Code § 2255, which provides, in relevant part:
[i]f the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate,
(emphasis added). We have held on more than one occasion that this bolded language “confers a broad and flexible power to the district courts to fashion an appropriate remedy:”
United States v.. Hillary,
Fourth, the district court judge who granted Taylor’s § 2255 Motion was the same judge who originally-sentenced him and granted the government’s Rule 35(b) Motion. Therefore, such judge was in an excellent position to interpret the state of the record.
See United States v. O’Brien,
In sum, all probative 'evidence in the record points to the conclusion that thе judgment vacated and reentered by the district court on January' 22, 2004 sentences Taylor to 141 months’ imprisonment. Accordingly, we hold that the judgment of conviction challenged by Taylor in the present appeal sentences him to 141 months’ imprisonment.
III.
We now turn to Taylor’s
Booker
claim.
See Booker,
Taylor is foreclosed from asserting a Booker claim in the present appeal because the original judgment of conviction entered on October 30, 2000 is not before us. The оnly judgment of conviction before us is the amended -judgment reentered by the district court on January 22, 2004, which amended judgment sentences Taylor to 141 months’ imprisonment based upon the government’s Rule 35(b) Motion. Moreover, the record is undisputed that Taylor did not pursue a direct appeal from his original judgment of conviction. Accordingly, his right to challenge on direct appeal any action or ruling by the district court in connection with the district court’s sentencing of him on October 30, 2000 has long since expired.
IV.
We next address Taylor’s claim to a Sixth Amendment right to effective assistance of counsel with respect to the government’s Rule 35(b) Motion, which right he claims was violated when the district court ruled on the government’s Rule 35(b) Motion without his having the benefit of counsel to represent him in the matter. He also states the record is insufficient to determine whether he was actually or constructively denied his alleged Sixth Amendment right to effective assistance of counsel with respect to the government’s Rule 35(b) Motion because whether his counsel was actually incarcerated “during the relevant time is unknown.... ” (Taylor’s Br. at 21). Accordingly, he requests that we remand this case for an evidentia-ry hearing to determine whether his counsel was in fact incarcerated or otherwise unavailable to him during the time the district court considered the government’s Rule 35(b) Motion.
Taylor’s Sixth Amendment right-to-counsel claim is without merit. The Sixth Amendment-provides that “the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. CONST, amend. VI. This language entitles a criminal defendant to effective assistance of counsel at each critical stage of his prosecution,
Kirby v. Illinois,
406
Taylor. .argues that the government’s Rule 35(b) Motion constitutes. a critical stage of his prosecution and, therefore, the Sixth Amendment guarantees him the, right to effective assistance of counsel in responding to the motion. Taylor’s argument initially misses the mark because a Rule 35(b) motion is not a trial-related proceeding and, therefore, the Sixth Amendment cannot serve as a source of his claimed right to counsel.
United States v. Palomo,
For reasons we explain as follows, we hold that neither the Constitution’s equal protection guarantees nor due process guarantees provide criminal defendants a right to effective assistance of counsel with respect to a motion by the government pursuant to Rule 35(b). The Supreme Court has squarely rejected suggestions that such guarantees support a federal constitutional right to counsel on direct discretionary appeals,
Wainwright v. Torna,
The defendant in
Legree
argued on appeal that the district court denied him federal constitutional due process by not appointing counsel to represent him on his § 3582(c)(2) motion.
Legree,
For purposes of right-to-counsel analysis, the government’s Rule 35(b) Motion for a reduction in Taylor’s sentence is indistinguishable from the defendant’s § 3582(c)(2) motion in
Legree.
Both motions could only benefit the defendant by reducing his sentence which had already become final, and neither motion is “a do-over of an original sentencing proceeding where a defendant is cloaked in rights mandated by statutory law and the Constitution.”
Legree,
V.
Taylor next contends that his Fifth Amendment Right to Procedural Due Process was violated because neither he nor his counsel ever received notice
of
the government’s Rule 35(b) Motion, and, therefore, he did not have an opportunity to respond at an evidentiary hearing or in
Whilе the actual constitutional underpinnings of Taylor’s arguments are less than clear, see
United States v. Alvarez,
Relevant to Taylor’s appeal on this issue, Pridgen stands for the proposition that if the government does not make the extent of a defendant’s assistance known to the district court in moving for a reduction in the defendant’s sentence pursuant to Rule 35(b), the defendant may be entitled to an evidentiary hearing on the government’s motion. Id. at 150. “The decision of the district court to conduct an evidentiary hearing [on a Rule 35(b) motion] is a matter left to the sound discretion of the district court, and we will review that decision only for an abuse of discretion.” Id.
Solely for purposes of analytical discussion, we assume that neither Taylor nor his counsel received notice of the government’s April 30, 2002 “SUPPLEMENT TO MOTION FOR SENTENCE REDUCTION BÁSED UPON SUBSTANTIAL ASSISTANCE.” (J.A. 142). Thus, we hypothetically excuse Taylor’s failure to request an evidentiary hearing before the district court with respect to the government’s Rule 35(b) Motion or to offer a written response. The question then becomes, had Taylor requested an evidentia-ry hearing with respect to the government’s Rule 35(b) Motion or offered a written response, would the district court have abused its discretion in denying an evidеntiary hearing or in not receiving a written response? The answer is no.
Taylor’s appeal on this issue is based upon his own wholly unfounded speculation that had he been allowed to respond at an evidentiary hearing or in writing to the government’s Rule 35(b) Motion, he would have received an even further reduction in his already substantially reduced sentence. The reality is that Taylor has not established on appeal that an evidentiary hearing or a written response from him was necessary for the district court to properly evaluate the government’s Rule 35(b) Motion. While Taylor summarily asserts in his brief “that he has information detailing his assistance in addition to that presented by the government ...,” he states in the
Under these circumstances, Taylor falls far short of establishing that the district court would have abused its discretion in refusing to conduct an evidentiary hearing had he requested one.' Taylor also falls far short of showing that the district court abused its discretion by ruling on the motion in the absence of a written response from him.
Notably, this is not a case where the government expressly promised to make a Rule 35(b) Motion in exchange for Taylor’s cooperation with law еnforcement but reneged on its promise.
See United States v. Martin,
VI.
For the foregoing reasons and based upon the legal authority discussed and cited herein, we affirm the district court’s judgment entered on January 22, 2004, which judgment sentences Taylor to 141 months’ imprisonment.
AFFIRMED
Notes
. The parties did not memorialize their plea deal in a written plea agreement. Nonetheless, the government, as agreed, subsequently moved to dismiss the remaining counts against Taylor. The district court granted the motion.
. Federal Rule of Criminal Procedure 35(b)(1) provides:
Upon the government's motion made within one year of sentencing, the court may reduce a sentence if:
(A) the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person; and
(B) reducing the sentence accords with the Sentencing Commission’s guidelines and policy statements.
Fed.R.Crim.P. 35(b)(1).
. For reasons neither party has sufficiently explained, neither party saw fit to inсlude the district court’s written order on remand in the joint appendix. We obtained our own copy from the district court.
. For the sake of clarity, we recognize that in
United States v. Boyce,
. Oddly, in another portion of Taylor’s brief, , he states that "[i]t is unclear whether Mr. Taylor or his attorney received notice of the government’s motion to reduce his sentence.” (Taylor’s Br. at 32).