UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 12-6719

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JEROMY BERNARD DEANE,

Defendant - Appellant.

On Remand from the Supreme Court of the United States.

(S. Ct. No. 12-6687)

Submitted: March 5, 2013 Decided: March 20, 2013

Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jeromy Bernard Deane, Appellant Pro Se. Jessica Aber Brumberg, 

OFFICE OF THE UNITED STATES ATTORNEY, Richard Daniel Cooke, 

Assistant United States Attorney, Richmond, Virginia, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

In April 2012, Jeromy Bernard Deane filed this appeal, 

in which he challenged the district court’s denial of his 18 

U.S.C. § 3582(c)(2) (2006) motion seeking a sentence reduction 

under Amendment 750 to the Sentencing Guidelines, and the 

district court’s denial of his motion to hold the case in 

abeyance pending the United States Supreme Court’s decision in 

Dorsey v. United States, 132 S. Ct. 2321 (2012). Dorsey

subsequently held that the Fair Sentencing Act of 2010, Pub. L. 

No. 111-220, 124 Stat. 2372 (“FSA”), applied retroactively to 

defendants who committed crimes involving cocaine base before 

the FSA’s effective date but were sentenced after the FSA took 

effect. 132 S. Ct. at 2335. After we affirmed on the reasoning 

of the district court, see United States v. Deane, 474 F. App’x 

212 (4th Cir. 2012), the Supreme Court of the United States 

granted Deane’s petition for writ of certiorari, vacated our 

decision, and remanded the case “for further consideration in 

light of Dorsey.” Deane v. United States, 133 S. Ct. 668, 668-

69 (2012). We have examined the impact of Dorsey upon Deane’s 

appeal, and we again affirm the district court.

An order granting or denying a § 3582(c)(2) motion is 

reviewed for abuse of discretion. United States v. Munn, 595 

F.3d 183, 186 (4th Cir. 2010). In this case, Deane was 

convicted of distributing five grams or more of cocaine base 
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under 21 U.S.C. § 841(a)(1) & (b)(1)(B) (2006). His offense 

involved 23.3 grams of cocaine base. When Deane was sentenced 

in September 2010, the presentence report assigned him a total 

offense level of twenty-three and a Guidelines range of 

imprisonment of ninety-two to 115 months. Nevertheless, the 

district court sentenced Deane to only seventy-two months in 

prison, which reflected a downward variance from the applicable 

Guidelines range.

As the district court properly recognized, applying 

Amendment 750 to Deane’s case reduces his total offense level to 

21, resulting in a Guidelines range of seventy-seven to ninetysix months’ imprisonment. See U.S. Sentencing Guidelines Manual

(“USSG”) § 2D1.1(c)(8) (2012). Thus, the seventy-two-month 

sentence that Deane initially received still falls below the 

bottom of the revised Guidelines range applicable to Deane after 

operation of Amendment 750.

As the Guidelines make clear, Deane’s below-Guidelines 

sentence could be proportionally reduced even further only if 

the original reduction was based on substantial assistance. 

USSG § 1B1.10(b)(2)(A), (B); id., cmt. n.3 (prohibiting a 

reduction below the bottom of the amended Guidelines range even 

where the original term of imprisonment was based on a downward

variance or departure, except for departures based on 

substantial assistance); USSG App. C, Amend. 759 (2011) 
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(explaining rationale of amendment). See also Dillon v. United 

States, 130 S. Ct. 2683, 2693 (2010) (holding that USSG § 1B1.10 

is mandatory, not advisory). Because no substantial assistance 

motion was filed on Deane’s behalf in this case, the district 

court properly ruled that it could not grant Deane’s motion.

Similarly, the district court did not abuse its 

discretion in declining to hold Deane’s appeal in abeyance 

pending the resolution of Dorsey. See Rhines v. Weber, 544 U.S. 

269, 276 (2005) (decision to stay and abey is consigned to 

district court’s discretion). Even assuming that a § 3582(c)(2) 

motion is a proper vehicle for Deane’s argument, applying the 

FSA to Deane’s case would not affect his sentence. But see

United States v. Foster, F.3d , No. 12-2699, 2013 WL 

466201, at *1-*2 (7th Cir. Feb. 8, 2013) (noting that any 

proceeding under § 3582(c)(2) “is limited to the application of 

changes in the Guidelines”); United States v. Berry, 701 F.3d 

374, 377 (11th Cir. 2012) (observing that the statutory change 

wrought by the FSA “is not a guidelines amendment by the 

Sentencing Commission,” and therefore cannot serve as the basis 

of a § 3582(c)(2) motion).

Under the FSA, § 841(b)(1)(B)’s five-year mandatory 

minimum sentence is no longer applicable to Deane. But, as 

indicated above, Deane’s advisory Guidelines range bottomed out 

at seventy-seven months, and he ultimately received a seventy-
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two-month sentence. As has been explained, Deane is not 

entitled to any reduction from his current seventy-two-month 

sentence. Thus, Deane’s sentence would not be altered by the 

elimination of the mandatory minimum set forth in 

§ 841(b)(1)(B), and the FSA therefore has no effect in his case. 

Under these circumstances, we can only conclude that the 

district court did not abuse its discretion in declining to hold 

Deane’s appeal in abeyance pending the resolution of Dorsey. 

Rhines, 544 U.S. at 276.

Accordingly, we deny Deane’s pending motion to appoint 

counsel, and we affirm the judgment of the district court. 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