                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-7155


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

JATIA TAVARUS BARRETT,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   William L. Osteen,
Jr., Chief District Judge.  (1:08-cr-00490-WO-1; 1:10-cr-00123-
WO-2)


Argued:   January 28, 2014                    Decided:   May 22, 2014


Before KING, SHEDD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK,
Chapel Hill, North Carolina, for Appellant.       Robert Michael
Hamilton, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro,
North Carolina, for Appellee.     ON BRIEF: Ripley Rand, United
States   Attorney,  OFFICE   OF  THE   UNITED  STATES   ATTORNEY,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

        Defendant Jatia Tavarus Barrett appeals from the district

court’s denial of his motions for sentence reductions, pursued

under 18 U.S.C. § 3582(c)(2) and the Fair Sentencing Act of 2010

(the “FSA”).       As explained below, we affirm.



                                                I.

                                                A.

        Barrett was a street-level drug dealer in and around Stanly

County, in the Middle District of North Carolina.                                 On December

15, 2008, a grand jury in that district returned an indictment

charging Barrett with conspiracy to distribute five grams or

more of crack cocaine, in contravention of 21 U.S.C. § 846, plus

three    substantive        counts        of     distributing        crack       cocaine,         in

violation    of     21   U.S.C.          § 841(a)(1)        (the    “2008       case”).          On

February     4,     2009,      Barrett          pleaded     guilty        to     one       of   the

distribution        counts,         in     exchange         for     the        United       States

Attorney’s        agreement     to        dismiss       the       other    three        charges.

Because    Barrett       had    a    prior        conviction        for    a     felony         drug

offense, he faced a statutory maximum penalty of life in prison.

      Barrett’s      sentencing           in     the    2008       case    took        place      in

Winston-Salem on March 10, 2010.                      The presentence report (“PSR”)

deemed Barrett responsible for 22.8 grams of crack cocaine.                                     The

PSR   further      recommended           that    he    be   categorized         as     a    career

                                                 2
offender pursuant to section 4B1.1 of the Sentencing Guidelines

(the       “career    offender     provision”),       on     account    of   his     prior

convictions          for    robbery    and    cocaine   distribution. 1           Because

Barrett      faced     a    potential    life      sentence,    application        of   the

career offender provision resulted in an offense level of 37 and

a criminal history category of VI.                   See USSG § 4B1.1(b).            After

receiving       a      three-level       reduction      in     offense       level      for

acceptance       of        responsibility,        Barrett’s    advisory      Guidelines

range was 262 to 327 months in prison.                          The district court

adopted the PSR without amendment.

       During        the    sentencing       proceedings,      the     district      court

observed      that     Barrett’s       advisory     Guidelines    range      would      have

been       significantly       lower    if    his    offense     of    conviction       had

involved powder cocaine instead of crack cocaine, stating that

“there is a lot of activity going on in . . . Congress as to

that [disparity].”             J.A. 58. 2     The court asked, “Why should the

Court not consider at least that range, 188 to 235 [months, the


       1
         The career offender provision mandates an increased
sentence for a defendant convicted of a controlled substance
offense, if he has previously been convicted of at least two
other qualifying felony offenses. Specifically, it provides for
a criminal history category of VI and an offense level dependent
on   the   statutory maximum   applicable  to  the   offense  of
conviction. See USSG § 4B1.1(b).
       2
       Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.



                                              3
career offender range for a powder cocaine offense], when it

considers where an appropriate sentence in this case would be?”

Id. 3       The court then varied downward on that basis, imposing a

sentence of 200 months.                      The judgment in the 2008 case was

entered on March 24, 2010.

        Six days later, on March 30, 2010, Barrett was indicted

anew,        for        conspiracy       to        distribute        crack     cocaine,      in

contravention            of     21    U.S.C.       § 846,     plus    distributing         crack

cocaine,       in       violation       of    21    U.S.C.     § 841(a)(1)       (the      “2010

case”).            On    June    9,     2010,      Barrett     pleaded       guilty   to    the

conspiracy charge in the 2010 case in exchange for dismissal of

the distribution count.                 Under the law that applied at the time

of his guilty plea, Barrett again faced a life sentence.

        Soon thereafter, however, Congress passed the FSA, which

took effect on August 3, 2010.                         See Pub. L. No. 111-220, 124

Stat.       2372.        By   increasing        the    drug   quantities       necessary     to

trigger       the       statutory      mandatory       penalties       for    crack   cocaine

offenses, the FSA aimed to reduce the disparity between crack

and     powder      cocaine          sentences.         The    FSA    also    directed      the


        3
       The district court’s commentary concerning the “disparity
between crack cocaine and powder cocaine” referred to what was
then the widely held belief that the 100-to-1 crack-to-powder
sentencing ratio established by statute and embodied in the
Guidelines was unjustified and race-based.     See J.A. 63; see
also Dorsey v. United States, 132 S. Ct. 2321, 2328-29 (2012).



                                                   4
Sentencing Commission to promulgate conforming amendments to the

Guidelines, which the Commission did by, inter alia, adopting

Amendment 750 in April 2011. 4

        Barrett’s sentencing hearing in the 2010 case occurred on

August 18, 2010, just fifteen days after the FSA’s effective

date.        His counsel did not then contend, however, that the FSA

had impacted Barrett’s advisory Guidelines range.                     The PSR — to

which Barrett did not object — held him responsible for 52.3

grams       of     crack,   and   he   was   again   classified       as   a   career

offender.          In light of the pre-FSA statutory maximum of life,

and factoring in Barrett’s acceptance of responsibility, the PSR

recommended the same Guidelines range that applied in the 2008

case:       262 to 327 months in prison.

        As in the 2008 case, the sentencing court in the 2010 case

elected       to    vary    downward   on    the   basis   of   the   crack-powder

disparity.          With explicit reference to “the reasons set forth

. . . in the sentencing in the [2008 case],” the court concluded

that the “guideline range . . . that would have been established

by the powder cocaine penalties [was] sufficient.”                         J.A. 134.

        4
       Part A of Amendment 750 to the Sentencing Guidelines
revised aspects of the Drug Quantity Table in Guidelines section
2D1.1 to account for the changes in the statutory penalties made
in the FSA. See USSG app. C, amend. 750 (2011). The Sentencing
Commission subsequently voted to include Part A in Guidelines
section 1B1.10 as an amendment that may be considered for
retroactive application. See id., amend. 759.



                                             5
Accordingly, Barrett was sentenced to another 200-month term, to

be   served     concurrently    with      the     200-month    sentence       that   was

imposed five months earlier in the 2008 case.                        The judgment in

the 2010 case was entered on September 7, 2010.

      While incarcerated, Barrett provided substantial assistance

to the government.         In recognition thereof, on June 8, 2011, the

United   States     Attorney    filed     a      motion   in   the   district    court

pursuant      to   Federal    Rule   of      Criminal      Procedure    Rule    35(b),

seeking reductions in each of Barrett’s sentences.                        On July 8,

2011, the court granted the motion and reduced each of Barrett’s

sentences to 100 months, to run concurrently.

                                        B.

      Six months later, on January 11, 2012, Barrett filed a pair

of pro se motions pursuant to 18 U.S.C. § 3582(c)(2), seeking a

further reduction by the district court of his concurrent 100-

month sentences.         Generally, a court lacks authority to modify a

term of imprisonment “once it has been imposed.”                       See 18 U.S.C.

§    3582(c).       Section    3582(c)(2),         however,     creates    a    narrow

exception to the general rule, by authorizing a sentencing court

to modify a defendant’s term of imprisonment if it was “based on

a sentencing range that has subsequently been lowered by the

Sentencing Commission.”

      In his pro se motions, Barrett relied on Amendment 750,

which    sought     to   harmonize      the      base     offense    levels    in    the

                                             6
Guidelines with the new statutory penalties wrought by the FSA.

The       government   opposed     Barrett’s       § 3582(c)(2)      motions,

explaining that Amendment 750 had no impact on his concurrent

sentences because they were not based on a sentencing range that

was   affected    by   Amendment   750,   but    on   the   career   offender

provision, which remained unchanged.            Barrett was then appointed

counsel, who responded to the government’s opposition and agreed

that Amendment 750 did not lower Barrett’s sentencing range.

Barrett’s counsel argued, however, that the FSA’s more lenient

statutory maximums, if applied, would have resulted in a lower

sentencing range under the career offender provision. 5              At that



      5
        To explain Barrett’s contention more concretely, we
consider how his advisory Guidelines ranges in the two cases
would have been calculated with and without the benefit of the
FSA.

      Absent the FSA

      •      In both the 2008 and 2010 cases, Barrett was
             subject to statutory maximum sentences of life
             imprisonment.

      •      Because he was classified as a career offender in
             each case, Guidelines section 4B1.1(b) provided
             the appropriate base offense level.     Since the
             statutory maximum for each underlying offense was
             life imprisonment, the base offense level in each
             case was 37.

      •   After receiving a three-level reduction in each
          case for acceptance of responsibility pursuant to
          Guidelines section 3E1.1, Barrett’s offense level
          was 34.    Combined with an automatic criminal
(Continued)
                                     7
time, our precedent foreclosed any retroactive application of

the FSA, see United States v. Bullard, 645 F.3d 237, 248 (4th

Cir. 2011), but Barrett’s appointed counsel properly sought to

preserve Barrett’s right to seek a sentence reduction “[s]hould

the   Supreme      Court   or   Congress    determine    that    the     reduced

penalties contained within the [FSA] . . . are applicable to

[Barrett].”       J.A. 225.

      As if on cue, the Supreme Court, during the pendency of

Barrett’s     §    3582(c)(2)    motions,     rendered    a     key     decision

concerning retroactivity issues relating to the FSA.                  See Dorsey

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




            history category of VI, his advisory Guidelines
            range was 262 to 327 months.

      Applying the FSA

      •     Under the FSA, Barrett would have been subject to
            a reduced statutory maximum sentence of forty
            years in each case.

      •     Pursuant to Guidelines section 4B1.1(b), where
            the statutory maximum for the underlying offense
            is twenty-five years or more (but not life), the
            base offense level is 34.

      •     After receiving a three-level reduction for
            acceptance   of    responsibility   pursuant   to
            Guidelines section 3E1.1, Barrett’s offense level
            would have been 31.    Combined with an automatic
            criminal history category of VI, his advisory
            Guidelines range would have been 188 to 235
            months.



                                      8
recognized          “six     considerations”      that,   “taken       together,

convince[d it] that Congress intended the [FSA’s] more lenient

penalties      to    apply   to   those   offenders   whose   crimes    preceded

August 3, 2010, but who were sentenced after that date,” as

Barrett was in the 2010 case.             See id. at 2331. 6     The Court did

not, however, decide whether the FSA should also be applied to

defendants who were sentenced prior to its effective date, as

Barrett was in the 2008 case.

        On June 27, 2012, without reference to the potential impact

of Dorsey, the district court entered orders denying Barrett’s

§ 3582(c)(2) motions, concluding that the statutory requirements

had not been satisfied.             Barrett timely noticed two appeals,

which       were   consolidated    for    our   consideration.     We   possess

jurisdiction pursuant to 28 U.S.C. § 1291.


        6
       As the Dorsey Court explained, the “six considerations”
illuminating Congress’s intent included:     (1) that “the 1871
saving statute [1 U.S.C. § 109] permits Congress to apply a new
Act’s more lenient penalties to pre-Act offenders without
expressly saying so”; (2) that the Sentencing Reform Act, 18
U.S.C. § 3551 et seq., established a “special . . . background
principle” of retroactivity for Guidelines sentencing; (3) that
language in the FSA implies that Congress intended to follow the
Sentencing Reform Act’s “background principle”; (4) that failure
to apply the FSA to the post-enactment sentencing of pre-
enactment offenders would create disparities of a kind that the
Sentencing Reform Act and the FSA were intended to prevent; (5)
that failure to apply the FSA to the post-enactment sentencing
of pre-enactment offenders would actually give rise to new
disparities not previously present; and (6) the lack of strong
countervailing considerations. See 132 S. Ct. at 2331-35.



                                          9
                                        II.

     We review for abuse of discretion a district court’s denial

of a motion for a sentence reduction made pursuant to 18 U.S.C.

§ 3582(c).     See United States v. Munn, 595 F.3d 183, 186 (4th

Cir. 2010).        Any sentencing error that “does not affect [the]

substantial rights” of the defendant is harmless and “must be

disregarded.”      See Fed. R. Crim. P. 52(a).



                                        III.

     Barrett’s appellate contention is that the district court

erred in denying his 18 U.S.C. § 3582(c)(2) motions for reduced

sentences    in     the   2008    and    2010    cases.          That      contention

implicates two issues.           First, we must assess whether the more

lenient     statutory     penalties      provided        for   in    the     FSA     are

retroactively      applicable      to   either    of      Barrett’s        sentences,

resulting in a lower advisory Guidelines range under the career

offender provision.        Second, if the FSA is applicable to either

of Barrett’s sentences, we must decide whether § 3582(c)(2) is

an appropriate vehicle for seeking relief.

                                        A.

     Barrett’s assertion that the FSA applies retroactively to

the 2008 case, though perhaps viable when first raised, has been

foreclosed    by    intervening     precedent       in    this      Court.         After

Barrett filed and briefed this appeal, we rendered our decision

                                         10
in United States v. Black, 737 F.3d 280 (4th Cir. 2013).                            Like

Barrett, the defendant in Black urged us to extend the Supreme

Court’s holding          in    Dorsey   v.    United      States,   132    S. Ct.   2321

(2012), insisting that the “six considerations” identified by

the Dorsey Court applied with equal force to sentences imposed

prior      to    the    effective    date     of    the    FSA.     Unconvinced,        we

concluded        that   Dorsey    did   not    disturb      our   earlier      ruling   in

United States v. Bullard, 645 F.3d 237, 249 (4th Cir. 2011),

that       the   FSA    does   not   apply        retroactively     to     a   defendant

sentenced before August 3, 2010.                    See Black, 737 F.3d at 287.

Furthermore, we rejected Black’s contention that a § 3582(c)(2)

proceeding was tantamount to a “new” sentencing proceeding, and

thus sufficient to trigger application of the FSA.                        See id.

       Barrett’s contentions with respect to the 2008 case fall

squarely within the ambit of Black and Bullard, and therefore

must fail. 7           Accordingly, the district court did not err in

denying Barrett’s § 3582(c)(2) motion in that case.




       7
       Barrett attempts to distinguish his 2008 case from Black,
emphasizing that Black was sentenced to a statutory mandatory
term of imprisonment, while Barrett’s sentence in the 2008 case
was driven by the career offender provision.            The sole
consideration in calculating Barrett’s sentencing range under
the career offender provision, however, was the applicable
statutory maximum, foreclosing Barrett’s asserted distinction.



                                             11
                                                B.

       Turning to Barrett’s sentence in the 2010 case, there is no

doubt    that,       in    light     of       Dorsey,     the    FSA     is   applicable.

Likewise, the parties do not dispute that application of the FSA

to     the    2010    case       would        have    lowered        Barrett’s        advisory

Guidelines range under the career offender provision.                                  But we

must    yet   consider          whether       Barrett’s    request      for   a       sentence

reduction predicated on a retroactive application of the FSA is

cognizable under § 3582(c)(2).

       The    government         maintains       that     § 3582(c)(2)        is       not    an

appropriate vehicle for the relief Barrett seeks, asserting that

this issue, too, was conclusively resolved by Black.                               There, we

explained that, even if Black had been entitled to the benefit

of     the    FSA,    that        right       could     not     be     vindicated        under

§ 3582(c)(2), which applies only to retroactive amendments to

the     Guidelines,        as     opposed       to    statutory       changes         made   by

Congress.      See Black, 737 F.3d at 286-87 (citing United States

v. Blewett, 746 F.3d 647, 656 (6th Cir. 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.’”)).

       Barrett counters that Black’s discussion of the scope of

§ 3582(c)(2)     is       not    controlling         because    that    explanation          was

dicta; that is, having held that Congress did not intend for the

                                                12
FSA to apply retroactively to Black’s sentence, there was no

need for the court to evaluate whether § 3582(c)(2) could have

been used to seek a sentence modification on the basis of the

FSA.       See, e.g., Pittston Co. v. United States, 199 F.3d 694,

703 (4th Cir. 1999) (recognizing as dicta any “statement in a

judicial opinion that could have been deleted without seriously

impairing the analytical foundation of the holding — that, being

peripheral,       may    not     have     received      the   full    and    careful

consideration of the court that uttered it”).                   Barrett urges us

to   interpret     § 3582(c)(2)         broadly,   predicated    on    the   premise

that Congress intended for the FSA’s new statutory sentences to

apply      immediately     and     uniformly       in    conjunction     with    the

Guidelines, including § 3582(c)(2).                  Such a contention, though

something of a reach, is not without support.                   See Blewett, 746

F.3d at 685-90 (Rogers, J., dissenting). 8

       Frankly,     neither       party     has      proposed    a    particularly

desirable outcome.        Either we overlook the fact that Barrett was

       8
       In his dissent to the Sixth Circuit’s en banc majority in
Blewett, Judge Rogers explained his view that “each of the
interpretive foundations for the Dorsey Court’s analysis applies
by analogy to the application of the [FSA’s] statutory minimums
under § 3582(c)(2).” 746 F.3d at 685. Accordingly, his opinion
reasoned that “when a [post-FSA] sentence is properly calculated
under 3582(c)(2) because a guideline has been retroactively
changed, the new statutory minimums should be applied as well.
In other words, when a [post-FSA] sentencing court properly has
before it the calculation of a sentence, the court should use
the [FSA] minimums.” Id.



                                           13
entitled to be sentenced under the FSA in the 2010 case, or we

stretch the limits of § 3582(c)(2) in the service of fairness

and equity.        Fortunately, Rule 52(a) mandates a more palatable

result:     assuming the district court erred in denying Barrett’s

§ 3582(c)(2)       motion     with    respect         to    the     2010      case,       we    must

nevertheless       affirm         because        such       error       was        demonstrably

harmless.    See United States v. Hargrove, 701 F.3d 156, 161 (4th

Cir. 2011).      As our Court has recognized, a sentencing error is

harmless “if the resulting sentence was not longer than that to

which the defendant would be otherwise subject.”                                    See United

States v. Metha, 594 F.3d 277, 283 (4th Cir. 2010); see also

United    States    v.   Revels,         455    F.3d       448,   452     (4th      Cir.       2006)

(explaining that a remand for resentencing is little more than

“an empty formality” if the sentence the court would impose on

remand is a “foregone conclusion”).                         As the government points

out, a remand in the 2010 case for application of the FSA and

Dorsey would yield no change to Barrett’s sentence.

      Absent application of the FSA, Barrett faced an advisory

Guidelines    range      of   262    to        327   months       based       on    the    career

offender    provision.            Like    Congress,          however,      the      sentencing

court deemed this sentencing range to be unfair in light of the

more lenient penalties applicable to powder cocaine offenders.

Accordingly, the court varied downward, explicitly because of

the   advisory     range      —    188    to    235     months      —     that      would       have

                                               14
applied to a similarly situated offender charged with conspiring

to distribute the same quantity of powder cocaine.                    That same

advisory range would apply — and for the same reasons — if

Barrett were to be resentenced in light of Dorsey and the FSA.

Significantly, the crack-powder disparity was the only reason

given by the court for its downward variance.                  Thus, there is no

basis for concluding that the court would impose a different

sentence   in     the   2010    case      on   remand.         Essentially,   the

sentencing court used its discretion to afford Barrett relief

under the FSA even before the Supreme Court determined that any

relief was      due.    We   should      acknowledge     the   district    court’s

wisdom, rather than requiring it to conduct remand proceedings

on   another    sentence     that   is    a    “foregone   conclusion.”       See

Revels, 455 F.3d at 452.



                                         IV.

      Pursuant to the foregoing, we affirm the judgments of the

district court.

                                                                          AFFIRMED




                                         15
