                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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 ninety-

six 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




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