United States v. Jeromy Deane , 515 F. App'x 195 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6719
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEROMY BERNARD DEANE,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 12-6687)
Submitted: March 5, 2013 Decided: March 20, 2013
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeromy Bernard Deane, Appellant Pro Se. Jessica Aber Brumberg,
OFFICE OF THE UNITED STATES ATTORNEY, Richard Daniel Cooke,
Assistant United States Attorney, Richmond, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In April 2012, Jeromy Bernard Deane filed this appeal,
in which he challenged the district court’s denial of his 18
U.S.C. § 3582(c)(2) (2006) motion seeking a sentence reduction
under Amendment 750 to the Sentencing Guidelines, and the
district court’s denial of his motion to hold the case in
abeyance pending the United States Supreme Court’s decision in
Dorsey v. United States, 132 S. Ct. 2321 (2012). Dorsey
subsequently held that the Fair Sentencing Act of 2010, Pub. L.
No. 111-220, 124 Stat. 2372 (“FSA”), applied retroactively to
defendants who committed crimes involving cocaine base before
the FSA’s effective date but were sentenced after the FSA took
effect. 132 S. Ct. at 2335. After we affirmed on the reasoning
of the district court, see United States v. Deane, 474 F. App’x
212 (4th Cir. 2012), the Supreme Court of the United States
granted Deane’s petition for writ of certiorari, vacated our
decision, and remanded the case “for further consideration in
light of Dorsey.” Deane v. United States, 133 S. Ct. 668, 668-
69 (2012). We have examined the impact of Dorsey upon Deane’s
appeal, and we again affirm the district court.
An order granting or denying a § 3582(c)(2) motion is
reviewed for abuse of discretion. United States v. Munn, 595
F.3d 183, 186 (4th Cir. 2010). In this case, Deane was
convicted of distributing five grams or more of cocaine base
2
under 21 U.S.C. § 841(a)(1) & (b)(1)(B) (2006). His offense
involved 23.3 grams of cocaine base. When Deane was sentenced
in September 2010, the presentence report assigned him a total
offense level of twenty-three and a Guidelines range of
imprisonment of ninety-two to 115 months. Nevertheless, the
district court sentenced Deane to only seventy-two months in
prison, which reflected a downward variance from the applicable
Guidelines range.
As the district court properly recognized, applying
Amendment 750 to Deane’s case reduces his total offense level to
21, resulting in a Guidelines range of seventy-seven to ninety-
six months’ imprisonment. See U.S. Sentencing Guidelines Manual
(“USSG”) § 2D1.1(c)(8) (2012). Thus, the seventy-two-month
sentence that Deane initially received still falls below the
bottom of the revised Guidelines range applicable to Deane after
operation of Amendment 750.
As the Guidelines make clear, Deane’s below-Guidelines
sentence could be proportionally reduced even further only if
the original reduction was based on substantial assistance.
USSG § 1B1.10(b)(2)(A), (B); id., cmt. n.3 (prohibiting a
reduction below the bottom of the amended Guidelines range even
where the original term of imprisonment was based on a downward
variance or departure, except for departures based on
substantial assistance); USSG App. C, Amend. 759 (2011)
3
(explaining rationale of amendment). See also Dillon v. United
States, 130 S. Ct. 2683, 2693 (2010) (holding that USSG § 1B1.10
is mandatory, not advisory). Because no substantial assistance
motion was filed on Deane’s behalf in this case, the district
court properly ruled that it could not grant Deane’s motion.
Similarly, the district court did not abuse its
discretion in declining to hold Deane’s appeal in abeyance
pending the resolution of Dorsey. See Rhines v. Weber, 544 U.S.
269, 276 (2005) (decision to stay and abey is consigned to
district court’s discretion). Even assuming that a § 3582(c)(2)
motion is a proper vehicle for Deane’s argument, applying the
FSA to Deane’s case would not affect his sentence. But see
United States v. Foster, F.3d , No. 12-2699, 2013 WL
466201, at *1-*2 (7th Cir. Feb. 8, 2013) (noting that any
proceeding under § 3582(c)(2) “is limited to the application of
changes in the Guidelines”); United States v. Berry, 701 F.3d
374, 377 (11th Cir. 2012) (observing that the statutory change
wrought by the FSA “is not a guidelines amendment by the
Sentencing Commission,” and therefore cannot serve as the basis
of a § 3582(c)(2) motion).
Under the FSA, § 841(b)(1)(B)’s five-year mandatory
minimum sentence is no longer applicable to Deane. But, as
indicated above, Deane’s advisory Guidelines range bottomed out
at seventy-seven months, and he ultimately received a seventy-
4
two-month sentence. As has been explained, Deane is not
entitled to any reduction from his current seventy-two-month
sentence. Thus, Deane’s sentence would not be altered by the
elimination of the mandatory minimum set forth in
§ 841(b)(1)(B), and the FSA therefore has no effect in his case.
Under these circumstances, we can only conclude that the
district court did not abuse its discretion in declining to hold
Deane’s appeal in abeyance pending the resolution of Dorsey.
Rhines, 544 U.S. at 276.
Accordingly, we deny Deane’s pending motion to appoint
counsel, and we affirm the judgment of the district court. 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
5