                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-6749


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

JOHNNIE LEE COWAN,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.    Rebecca Beach Smith, Chief
District Judge. (2:09-cr-00039-RBS-FBS-1)


Submitted:   June 28, 2012                 Decided:   July 12, 2012


Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Johnnie Lee Cowan, Appellant Pro Se.   Darryl James Mitchell,
Assistant  United  States  Attorney, Norfolk,  Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Johnnie Lee Cowan appeals the district court’s order

denying his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction

of sentence based on Amendment 750 to the Sentencing Guidelines

and   the    Fair       Sentencing      Act       of    2010,      Pub.    L.     No.    111-220,

124 Stat. 2372 (“FSA”).                 We review for abuse of discretion a

district court’s decision on whether to reduce a sentence under

§ 3582(c)(2)        and     review     de    novo       a    court’s      conclusion          on   the

scope       of     its         legal    authority              under       that      provision.

United States          v.     Munn,    595       F.3d       183,   186    (4th     Cir.       2010).

Finding no reversible error, we affirm.

             In        2009,    Cowan       pled       guilty,      pursuant        to    a        plea

agreement,        to    one     count       of    possession        with     the     intent         to

distribute fifty grams or more of cocaine base, in violation of

21    U.S.C.A.      § 841(a)(1),          (b)(1)(A)(iii)            (West       2006      &    Supp.

2012).      Cowan was sentenced to the statutory mandatory minimum

term of 120 months’ imprisonment.                           In 2011, the district court

reduced Cowan’s sentence to sixty months’ imprisonment pursuant

to Fed. R. Crim. P. 35(b).

             The        FSA     reduced       the       mandatory         minimum        sentences

applicable to certain cocaine base offenses.                              If Cowan had been

sentenced under the FSA, he would not have been subject to the

120-month mandatory minimum, and the Guidelines amendment could

reduce      his     amended       Guidelines            range      below        sixty         months.

                                                  2
United States v. Stewart, 595 F.3d 197, 201-04 (4th Cir. 2010).

Cowan, however, originally was sentenced before the enactment of

the FSA.   We previously have held that the FSA does not apply

retroactively     to   offenders   who,   like   Cowan,   were    sentenced

before its enactment.       United States v. Bullard, 645 F.3d 237,

246-49 (4th Cir.), cert. denied, 132 S. Ct. 356 (2011).                  Nor

does Cowan’s post-FSA sentencing reduction in 2011 alter our

conclusion that Cowan is not within the class of offenders who

are eligible to benefit from the FSA.            Thus, because the FSA’s

revised penalty provisions do not apply to Cowan, the district

court properly rejected his argument that Guidelines Amendment

750 could further reduce his sentence.

           Accordingly, we affirm the district court’s order.            We

dispense   with    oral   argument   because      the   facts    and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                   AFFIRMED




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