                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-6228


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DARNELL BLACK, a/k/a Chuck,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:05-cr-00313-BO-1)


Argued:   October 30, 2013                 Decided:   December 6, 2013


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Affirmed by published opinion.        Judge Niemeyer wrote the
opinion, in which Judge King and Judge Duncan joined.     Judge
King wrote a separate concurring opinion.


ARGUED: G. Alan DuBois, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant.         Yvonne Victoria
Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.    ON BRIEF:   Thomas P. McNamara,
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant.       Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
NIEMEYER, Circuit Judge:

        Darnell     Black     was       sentenced       in     January    2007     to     the

statutory minimum of 120 months’ imprisonment for conspiracy to

traffic in more than 50 grams of crack cocaine.                           See 21 U.S.C.

§ 841(b)(1).         The    Fair    Sentencing          Act,   which     was    enacted    in

2010, more than three years after Black was sentenced, reduced

the statutory minimum sentence applicable to his circumstances

from 120 months’ imprisonment to 60 months’ imprisonment.                               Black

filed    a   motion    under       18    U.S.C.     §    3582(c)(2)      to     modify    his

sentence, contending that the reduced minimum sentences in the

Fair Sentencing Act should apply to him.                          The district court

denied his motion, relying on our decision in United States v.

Bullard, 645 F.3d 237 (4th Cir. 2011), in which we held that the

Fair Sentencing Act does not apply retroactively.

        For the reasons given herein, we affirm.                       We conclude that

the statutory minimum sentences in the Fair Sentencing Act do

not apply to a defendant sentenced before the Act’s effective

date.     Moreover, we reject Black’s argument that a § 3582(c)(2)

proceeding        conducted    after       the    effective       date     of    the     Fair

Sentencing Act provides a vehicle by which to apply the reduced

minimum sentences in the Fair Sentencing Act to him.




                                             2
                                             I

     Black pleaded guilty on September 14, 2006, to conspiracy

to distribute and possess with intent to distribute more than 50

grams   of    crack     cocaine,      in     violation     of    21     U.S.C.       §§ 846,

841(a)(1).        In    the     presentence       report       prepared       for    Black’s

sentencing, the probation officer recommended that Black be held

accountable for 84.2 grams of crack cocaine and 26.8 grams of

powder cocaine, yielding, after other adjustments not relevant

here,   a    Sentencing         Guidelines       range    of    97     to    121     months’

imprisonment.          Because the underlying drug trafficking offense

involved more than 50 grams of crack cocaine, however, Black was

subject      to   a     statutory         minimum   sentence          of     120     months’

imprisonment,         id.   §     841(b)(1)(A)      (2006),      and        therefore      his

sentencing range became 120 to 121 months’ imprisonment.                                    On

January     23,   2007,     the    district      court    sentenced         Black     to   120

months’ imprisonment, the statutory minimum.

     More     than     three      years    later,   Congress         enacted        the    Fair

Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-220, 124 Stat.

2372, in response to extensive criticism about the disparity in

sentences     between       crack    cocaine      offenses       and    powder       cocaine

offenses.     See Dorsey v. United States, 132 S. Ct. 2321, 2328-29

(2012).       Among     other      things,    the   FSA    reduced          the    statutory

minimum sentences for crack cocaine offenses by increasing the

quantity of crack cocaine necessary to trigger the minimums --

                                             3
raising the amount from 15 grams to 28 grams for the 5-year

minimum sentence, and from 50 grams to 280 grams for the 10-year

minimum sentence.           See FSA § (2)(a).           The Act left the statutory

minimum sentences for powder cocaine in place.                              The effect of

the changes was to reduce the sentencing disparity between crack

cocaine offenses and powder cocaine offenses by lowering the

crack-to-powder ratio from 100-to-1 to 18-to-1.                               The FSA also

directed     the    Sentencing      Commission         to     conform    the    Sentencing

Guidelines to the new statutory minimums “as soon practicable.”

Id.    §   8.      The     Sentencing      Commission         thereafter       promulgated

amendments         to     the     Guidelines,         reducing        the      recommended

sentencing        ranges    to    levels    consistent         with     the    FSA,     to   be

applied retroactively.              See U.S.S.G. App. C Amends. 750, 759

(2011).          Comments    to    the    Guidelines,         however,        explain    that

retroactive amendments do not alter statutory minimum terms of

imprisonment.           See U.S.S.G. § 1B1.10, cmt. n.1(A).

       On October 18, 2012, Black filed a motion to reduce his

sentence pursuant to 18 U.S.C. § 3582(c)(2), which allows for a

sentence reduction “in the case of a defendant who has been

sentenced to a term of imprisonment based on a sentencing range

that       has    subsequently           been       lowered     by      the     Sentencing

Commission.”        Black claimed that because the FSA had lowered the

statutory minimum for the amount of crack cocaine for which he

was    accountable        from    120    months’      imprisonment       to     60    months’

                                                4
imprisonment and the Sentencing Commission had, as required by

the FSA, reduced its recommended sentencing ranges for crack

cocaine    to    the   same     extent,   his   sentence   should      be   reduced

accordingly.

     The district court denied Black’s motion, relying on our

decision in Bullard to state that “[t]he Fourth Circuit, like

most others, has held that the FSA mandatory minimums do not

apply retroactively.”           The court therefore concluded that while

“application of the retroactive FSA guidelines to this matter

results in a new guideline range of fifty-one to sixty-three

months . . . [the] defendant still faces a pre-FSA mandatory

minimum of 120 months’ imprisonment.”

     Black filed this appeal, arguing primarily that even though

the Supreme Court’s decision in Dorsey may not have directly

overruled       Bullard,   it    nonetheless    provides   the       rationale   for

applying the FSA to his § 3582(c)(2) proceeding and thereby for

modifying his 120-month sentence, which had been imposed in 2007

before the effective date of the Act.


                                          II

     Black contends that the Supreme Court’s decision in Dorsey,

while     not    holding   that    the    FSA   applies    to    a    § 3582(c)(2)

proceeding, implies such a result through its reasoning.                         He

recognizes Dorsey’s narrow holding that persons sentenced after


                                          5
the effective date of the FSA for an offense committed before

the effective date should be sentenced pursuant to the FSA.                              To

apply that holding, he reasons that a § 3582(c)(2) proceeding is

a sentencing proceeding, and therefore, because his § 3582(c)(2)

proceeding took place after the FSA’s effective date, he should

be   sentenced     under      the   FSA,        which    establishes          a     reduced

statutory minimum sentence of 60 months’ imprisonment for the

amount of drugs involved in his crime.

      To   reach   this    conclusion,         he   relies     on    the     reasons    the

Dorsey Court gave for concluding that a defendant who commits a

crime before the effective date of the FSA but was sentenced

after the effective date should have the benefit of the FSA.                            He

argues that just as Dorsey’s holding did no violence to the

basic principles governing the retroactivity of legislation, a

holding    applying    the    FSA   to     §     3582(c)(2)         proceedings      would

similarly do no such violence.                 This is because, he explains, a

sentencing court generally applies the Sentencing Guidelines in

effect on the date of sentencing, 18 U.S.C. § 3553(a)(4)(A)(ii),

and the FSA was enacted against that statutory background.                              He

contends    that   his     construction          is     confirmed      by     the    FSA’s

directive to the Sentencing Commission to conform its Guidelines

to   the   FSA   “as   soon    as   practicable”         and    by     the    Sentencing

Commission’s response in promulgating reduced Guidelines ranges,

to be applied retroactively.             Moreover, he argues, as a policy

                                           6
consideration, the Supreme Court in Dorsey recognized that the

FSA was enacted to eliminate disparities and application of the

FSA through § 3582(c)(2) would eliminate disparities.                    As he

states:

      It follows from the reasoning of Dorsey that Congress
      intended that the Fair Sentencing Act’s more lenient
      mandatory   minimums also   apply  in   §  3582(c)(2)
      proceedings based on the retroactive FSA guideline
      amendments.

      While Black’s logical development is neat, it overlooks and

therefore fails to address legal realities.           First, there is no

language in the FSA explicitly providing or even suggesting that

it be applied retroactively.         Second, Dorsey resolved a tension

between 1 U.S.C. § 109 and 18 U.S.C. § 3553(a)(4) with reasoning

that would not apply to a sentence-modification proceeding under

§ 3582(c)(2).        Third, without precedential support from Dorsey,

Black is bound by our decision in Bullard, which held that the

FSA is not retroactive.         And fourth, a § 3582(c)(2) proceeding

is   not   a   sentencing   proceeding   as   addressed   in   Dorsey,    and,

moreover,      the   language   of   § 3582(c)(2)    itself     limits     its

applicability to the situation where the defendant was sentenced

based on a sentencing range that subsequently was reduced by the

Sentencing Commission.       We address the second, third, and fourth

points in further detail.




                                     7
                                              A

      In construing the FSA, the Dorsey Court was faced with the

task of resolving the tension between the principles inherent in

two   statutes      that    seemed      to        pull     in    opposite    directions.

Section     109    of    Title    1,        which     is    a     statute    of    general

applicability, provides, as the Dorsey Court described it, that

“a new criminal statute that repeals an older criminal statute

shall not change the penalties incurred under that older statute

unless the repealing Act shall so expressly provide.”                                  Dorsey,

132 S. Ct. at 2330 (internal quotation marks and alterations

omitted).     Section 3553(a)(4)(A)(ii) of Title 18, on the other

hand, provides, again as the Dorsey Court described it, that

“regardless       of     when    the        offender’s          conduct     occurs,       the

applicable Guidelines are the ones in effect on the date the

defendant is sentenced.”            Id. at 2331 (internal quotation marks

omitted).         The    Court   observed           that    the    language       of    these

statutes “argues in opposite directions.”                           Id. at 2230.            In

resolving the tension, the Court concluded that Congress, in

enacting the FSA, clearly understood and accepted the existing

principles    of       § 3553(a),      as    it      specifically         instructed      the

Sentencing Commission to promulgate new Guidelines “as soon as

practicable.”          Thus, the Court reasoned that Congress intended

that the FSA apply to all those who had not yet been sentenced

even though their crimes may have been committed before the Act.

                                              8
Id.    at    2331.     Moreover,      it    observed      that       this     conclusion

eliminated an undesirable disparity, noting that two different

defendants accountable for the same quantity of crack cocaine

and sentenced on the same day after the effective date of the

FSA -- one for a crime committed before the Act’s effective date

and one for a crime committed after -- should be subject to the

same law at sentencing.            Id. at 2333.           In essence, the Court

held    that    the   FSA    should    be      applied    prospectively          to    all

sentences imposed after the Act’s effective date of August 3,

2010.       Id. at 2335.

       While    the   Court’s    interpretation          of    the     FSA    eliminated

disparities among all defendants sentenced after the effective

date, it recognized that its construction would leave in place

disparities      between     defendants     sentenced         before    the    effective

date of the FSA and defendants sentenced after.                        Dorsey, 132 S.

Ct.    at    2335.     The    Court   reasoned       that       some    disparity      is

inevitable when Congress changes the penalty for a crime.                        Id.

       In this case, Black was sentenced in 2007, before the 2010

effective date of the FSA, and therefore cannot rely on Dorsey’s

reasoning.       Any efforts by Black to broaden Dorsey’s holding by

arguing that the FSA applies generally to reduce the sentences

of all persons having received statutory minimum sentences at

any time before the effective date of the FSA are not supported



                                           9
by any statute or case law.                      Indeed, our decision in Bullard

precludes such efforts.

                                                 B

     In     Bullard,       we     held      “that           the       FSA   does    not   apply

retroactively.”          Bullard, 645 F.3d at 249.                      The defendant there

committed a crime before the effective date of the FSA and was

also sentenced before the effective date, just as is the case

here,     and    we     limited    our       holding             to   those    circumstances.

Indeed, we specifically noted, “We do not address the issue of

whether the FSA could be found to apply to defendants whose

offenses were committed before August 3, 2010, but who have not

yet been sentenced, as that question is not presented here.”

Id. at 248 n.5 (emphasis added).                            Likewise, the Dorsey Court

expressly       noted    that     it       was        not       extending     its   relief   to

individuals sentenced before the FSA’s effective date:

     We also recognize that application of the new minimums
     to pre-Act offenders sentenced after August 3 will
     create   a  new   set   of   disparities.     But   those
     disparities, reflecting a line-drawing effort, will
     exist whenever Congress enacts a new law changing
     sentences    (unless    Congress    intends    re-opening
     sentencing proceedings concluded prior to a new law's
     effective date). We have explained how in federal
     sentencing the ordinary practice is to apply new
     penalties to defendants not yet sentenced, while
     withholding   that   change   from   defendants   already
     sentenced.    [C]ompare 18 U.S.C. § 3553(a)(4)(A)(ii)
     with § 3582(c).

                                       *         *          *




                                                 10
        We consequently conclude that this particular new
        disparity (between those pre-Act offenders already
        sentenced and those not yet sentenced as of August 3)
        cannot make a critical difference.

Dorsey, 132 S. Ct at 2335 (citation omitted).

       Since Dorsey was decided, we have twice concluded that it

did not overrule our decision in Bullard.                   In United States v.

Mouzone, 687 F.3d 207, 222 (4th Cir. 2012), we held, citing both

Dorsey and Bullard, that the FSA “applies retroactively only to

‘offenders whose crimes preceded August 3, 2010, but who are

sentenced after that date.’”               (Emphasis added).          Likewise, in

United States v. Allen, 716 F.3d 98, 107 (4th Cir. 2013), we

stated that “our holding in Bullard -- that the Fair Sentencing

Act does not have retroactive effect -- is limited [by Dorsey]

to the extent that the Fair Sentencing Act does apply to all

sentences handed down after its enactment.”

                                           C

       Black   attempts       to       distinguish    our        Bullard    line    of

precedents by noting that those cases involved direct appeals of

the defendants’ initial sentences, whereas his case involves a

motion    under      18   U.S.C.   §    3582(c)(2).         He    argues   that    his

§ 3582(c)(2)      motion    initiated      a   new   sentencing      proceeding     to

which    the   FSA    would   apply      under   Dorsey,     because       the   “new”

sentencing proceeding took place after the effective date of the

FSA.


                                          11
      In    making        this           argument,       he     acknowledges         that     his

§ 3582(c)(2) proceeding, which allows for limited modifications,

was not a “plenary resentencing.”                       But he argues:

      A sentence “modification” under § 3582(c) bears many
      of the hallmarks of an initial sentencing:         the
      district court must calculate the advisory guideline
      range in light of the amended guideline provisions, it
      must consider the statutory sentencing factors set out
      at 18 U.S.C. § 3553(a), and it must exercise
      discretion to determine what sentence to impose in
      light of these factors.      See U.S.S.G. § 1B1.10,
      § 3582(c)(2).   Especially in cases where a defendant
      received a substantial assistance departure initially,
      the district court enjoys substantial latitude in the
      manner and means of calculating what reduction, if
      any, to grant the defendant.

      This argument overlooks the fact that Black is serving a

statutory    minimum          sentence       that       was   imposed     on   him     in   2007,

before     the    2010        effective          date    of   the     FSA,     and     that   the

reasoning of Dorsey, applying the FSA to sentences imposed after

its   effective         date,      referred        to    initial      sentencings,       as   the

Court alluded to the relationship between the criminal act and

the   sentence,         not     to       subsequent       proceedings        to   modify      the

sentence.         See, e.g., Dorsey, 132 S. Ct. at 2331-32, (referring

to the imposition of penalties for a crime when discussing the

tension      between           1      U.S.C.        §     109       and      18      U.S.C.     §

3553(a)(4)(A)(ii));             see       also    id.    at    2335    (referring        to   the

disparity        left    by        its    decision       as     “between       those    pre-Act

offenders already sentenced and those not yet sentenced as of

August 3” (emphasis added)).                      Black’s § 3582(c)(2) motion is an

                                                  12
effort to modify a preexisting sentence, imposed in 2007, and

Black fails to explain how his 2007 sentence could be changed

without a retroactive application of the FSA.

     Moreover,       Black’s       ability           to    obtain    modification      under

§ 3582(c)(2)    of    an     earlier       entered         sentence    would    have   been

available only if his 2007 sentence were “based on a sentencing

range that ha[d] subsequently been lowered by the Sentencing

Commission     pursuant       to      28    U.S.C.          § 994(o).”         18   U.S.C.

§ 3582(c)(2) (emphasis added).                       That gate of opportunity was

thus open only under conditions that Black did not satisfy --

his sentence was not based on “a sentencing range” that the

Sentencing Commission subsequently lowered.                           He was originally

sentenced to a statutory minimum sentence fixed by Congress in

21 U.S.C. § 841(b)(1), and the Sentencing Commission did not

change, nor purport to change, that statutory minimum sentence.

Indeed,   it   had    no   authority        to        change   any    statutory     minimum

fixed by congressional enactment.

     This      is     explicitly            recognized          by     the      Sentencing

Commission’s        policy     statement              applicable       to     § 3582(c)(2)

proceedings.        See 18 U.S.C. § 3582(c)(2) (providing that any

reduction under § 3582(c)(2) must be “consistent with applicable

policy    statements         issued        by        the    Sentencing       Commission”).

U.S.S.G. § 1B1.10, the applicable policy statement, specifies

that a defendant is not eligible for § 3582(c)(2) relief where

                                                13
his   Guideline      range    has    not     been       lowered       “because      of    the

operation of another guideline or statutory provision (e.g., a

statutory mandatory minimum term of imprisonment).”                               U.S.S.G.

§ 1B1.10 cmt. n.1(A) (emphasis added).                     “Together, § 3582(c)(2)

and   the   Policy    Statement      make       clear     that    a    defendant     whose

offense of conviction involved crack is eligible for a reduced

sentence     only     if     [the    amendment]          lowers       the    defendant’s

applicable guideline range.”               United States v. Munn, 595 F.3d

183, 187 (4th Cir. 2010).

      The Sentencing Commission also made this point clear when

issuing     Guideline      Amendment        759,       which      made      the    primary

Guideline     Amendment       implementing          the     FSA       (Amendment         750)

retroactive.        The Commission stated that “[t]he Fair Sentencing

Act of 2010 did not contain a provision making the statutory

changes retroactive. . . .                 [T]he inclusion of Amendment 750

(Parts A and C) in § 1B1.10(c) only allows the guideline changes

to be considered for retroactive application; it does not make

any of the statutory changes in the Fair Sentencing Act of 2010

retroactive.”         U.S.S.G.      App.    C    Amend.     750       (2011)      (emphasis

added).

      In this case, Black’s 120-month sentence was the minimum

required by statute at the time he was sentenced.                              Since the

Sentencing     Commission      did    not,       nor    could     not,      reduce       this

statutorily     mandated       minimum,      Black        was    “ineligible        for     a

                                           14
reduction under § 3582(c)(2).”                  Munn, 595 F.3d at 187; see also

United States v. Hood, 556 F.3d 226, 235-36 (4th Cir. 2009).


                                              III

       In sum, we conclude, as we did in Bullard, that the reduced

statutory       minimum      sentences       enacted      in   the   FSA    on    August       3,

2010,     do    not       apply      retroactively        to     defendants       who      both

committed       crimes       and   were     sentenced      for     those    crimes       before

August 3, 2010.             See Bullard, 645 F.3d at 249.              We also conclude

that a proceeding commenced by the filing of a motion under §

3582(c)(2) is not a sentencing proceeding to which the holding

of Dorsey applies.              See United States v. Blewett, __ F.3d __,

No. 12-5226(L), 2013 WL 6231727, *8-10 (6th Cir. Dec. 3, 2013)

(en     banc)       (“[A]     mandatory       minimum      subsequently          lowered       by

Congress is not, as § 3582(c)(2) requires, a ‘sentencing range .

. . subsequently . . . lowered by the Sentencing Commission

pursuant       to    28     U.S.C.    §     994(o)’”     (omissions        in    original));

United States v. Kelly, 716 F.3d 180, 182 (5th Cir. 2013) (“We

thus    join        our   sister      circuits      in    declining        to    treat     a   §

3582(c)(2) modification hearing as the equivalent of an original

sentencing hearing under Dorsey”); United States v. Hammond, 712

F.3d     333,       336     (6th     Cir.    2013)       (same);     United      States        v.

Augustine, 712 F.3d 1290, 1295 (9th Cir. 2013) (same); United

States v. Berry, 701 F.3d 374, 377 (11th Cir. 2012) (same).


                                               15
Finally, we conclude, as we stated in Munn, that a defendant who

has   been    convicted    of     a   crack     cocaine   offense   and    given   a

statutory minimum sentence is “ineligible for a reduction under

§ 3582(c)(2).”      Munn, 595 F.3d at 187; see also Hood, 556 F.3d

at 235-36.

      In     reaching     these       conclusions,    we    recognize      that    a

discrepancy remains between those sentenced to statutory minimum

sentences under 21 U.S.C. § 841(b) before August 3, 2010, the

effective date of the FSA, and those sentenced after.                     But such

a   discrepancy,    “reflecting        a   line-drawing    effort,   will     exist

whenever Congress enacts a new law changing sentences,” Dorsey,

132 S. Ct. at 2335, and any unfairness resulting from such a

discrepancy is “beyond the province of this court to resolve,”

Augustine, 712 F.3d at 1295.

      Accordingly, the judgment of the district court is

                                                                          AFFIRMED.




                                           16
KING, Circuit Judge, concurring:

      Bound   by     our   decision    in   Bullard,     I     join    in   Judge

Niemeyer’s opinion for the Court.           I write separately to express

my   regret   that   controlling      precedent    compels     such   an    unfair

result.     Prior to the FSA, Congress’s insistence on unduly harsh

mandatory     minimum      sentences     for      nonviolent     crack-cocaine

offenders — even after such sentences were widely acknowledged

to be racially discriminatory — was a grim misfire in the war on

drugs.    Remnants of the injustice thus occasioned will persist

as the result of our opinion today.

      Fortunately, the Supreme Court’s decision in Dorsey does

not foreclose the hope that Bullard could one day be abrogated.

As Judge Niemeyer’s opinion makes clear, Dorsey stopped short of

deciding whether a defendant sentenced under the old regime may

avail himself of an FSA-reduced mandatory minimum.                    The Dorsey

decision therefore left open the possibility that the Court will

confront that retroactivity issue in a subsequent case.                        The

Court could yet be persuaded — as am I — by Black’s contention

that the reasoning underlying Dorsey applies with equal force to

defendants such as him.         Others have made known their similar

views.      See United States v. Blewett, ___ F.3d ___, No. 12-

5226(L), 2013 WL 6231727, at *36-38 (6th Cir. Dec. 3, 2013) (en

banc) (Rogers, J., dissenting).



                                       17
      Otherwise, I join the call for congressional and executive

action following through on the noble promise of the FSA:                to

“restore fairness to Federal cocaine sentencing.”              See Pub. L.

111-220, 124 Stat. 2372, 2372.       There is nothing fair about the

ongoing plight of thousands of crack-cocaine offenders who yet

languish in our prison system, serving sentences based largely

on   race-based   misperceptions,   rather   than   on   the   gravity   of

their criminal conduct.




                                    18
