United States v. Johnnie Cowan ( 2012 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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