                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-6017


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

NATHANIEL MAURICE GAFFNEY,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Spartanburg.    J. Michelle Childs, District
Judge. (7:07-cr-00711-JMC-5)


Submitted:   April 23, 2013                     Decided:   May 3, 2013


Before MOTZ and    SHEDD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Nathaniel Maurice Gaffney, Appellant Pro Se.      Jimmie Ewing,
Assistant United States Attorney, Columbia, South Carolina;
Elizabeth   Jean  Howard,   Assistant  United States   Attorney,
Greenville, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              In 2008, Nathaniel Maurice Gaffney was sentenced to

135 months’ imprisonment following his conviction for conspiracy

to     distribute     and     possess          with    intent     to     distribute       five

kilograms or more of cocaine and fifty grams or more of cocaine

base (“crack”), in violation of 18 U.S.C. § 846 (2006).                                     In

2012, Gaffney filed a motion for reduction in sentence pursuant

to 18 U.S.C. § 3582(c)(2) (2006), arguing that U.S. Sentencing

Guidelines Manual App. C, Amends. 750 and 759 (2011), together

with the Fair Sentencing Act of 2010 (“FSA”), Pub. L. No. 111-

220, 124 Stat. 2372, reduced his advisory Guidelines range and

his mandatory minimum sentence.                       The district court denied the

motion.      For the reasons that follow, we affirm in part, vacate

in part, and remand for further proceedings.

              Under § 3582(c)(2), the district court may modify the

term    of   imprisonment          “of    a    defendant    who    has      been    sentenced

. . .      based     on   a    sentencing           [Guidelines]       range       that    has

subsequently been lowered,” if the amendment is listed in the

Guidelines as retroactively applicable.                     18 U.S.C. § 3582(c)(2);

see also USSG § 1B1.10(c), p.s. (2012).                           Even if a defendant

qualifies      for    a     sentence          reduction    based       on    a     Guidelines

amendment, the decision to grant such a modification is subject

to   the     discretion       of    the       court.      See   USSG     §   1B1.10,      cmt.

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

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2010).      “A district court abuses its discretion if it fails

adequately to take into account judicially recognized factors

constraining        its    exercise,       or       if    it    bases       its    exercise    of

discretion on an erroneous factual or legal premise.”                                  DIRECTV,

Inc. v. Rawlins, 523 F.3d 318, 323 (4th Cir. 2008) (internal

quotation marks omitted).

              Gaffney       argued       in     the       district          court    that     his

Guidelines range was lowered both by Amendment 750 and by the

FSA.     The       FSA    increased      the        threshold         quantities      of    crack

required      to     trigger       certain          mandatory          minimum       sentences.

However, it is only retroactively applicable to defendants who

were   sentenced         after    its    effective         date       of    August    3,    2010.

Dorsey v. United States, 132 S. Ct. 2321, 2335 (2012); United

States   v.    Bullard,          645    F.3d    237,       246-49       (4th      Cir.),    cert.

denied, 132 S. Ct. 356 (2011).                      Gaffney was sentenced in 2004,

well before the FSA’s effective date.                                In any event, in his

informal brief, Gaffney does not challenge the district court’s

conclusion      that       the    FSA    did    not        lower      Gaffney’s      statutory

mandatory      minimum       sentence.               Therefore,            Gaffney    forfeited

appellate      review       of    this    claim.               See    4th     Cir.   R.     34(b)

(providing     that       this    court       considers         only       issues    raised    in

briefs).       For       these    reasons,      we       affirm      the    district      court’s

order to the extent that it concluded that Gaffney’s statutory



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mandatory minimum sentence was not reduced by the FSA and that

he was not eligible for a sentence reduction based on the FSA.

               However, the district court denied § 3582(c)(2) relief

without       addressing       Gaffney’s         eligibility        for     a     sentence

reduction under Amendment 750 independent of the FSA.                            Amendment

750    to    the    Guidelines     lowered       the    offense    levels       for   crimes

involving          certain     quantities         of      crack     cocaine       and    is

retroactive.         See USSG §§ 1B1.10(c); USSG App. C Amends. 750,

759.        Because we conclude that Gaffney may have been eligible

for such a reduction, we vacate the district court’s order in

part and remand for further proceedings to enable the district

court to determine if Gaffney is eligible and, if so, whether to

grant such a reduction.

               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 IN PART,
                                                                      VACATED IN PART,
                                                                          AND REMANDED




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