UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-6544

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KENYATTE BROWN,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Margaret B. Seymour, Senior District Judge. (3:01-cr-01109-MBS-1)

Submitted: November 21, 2019 Decided: November 25, 2019

Before KEENAN and DIAZ, Circuit Judges, and SHEDD, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Emily Deck Harrill, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Sherri A. Lydon, United States Attorney, William K. Witherspoon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Kenyatte Brown appeals the district court’s order denying his motion for a sentence

reduction pursuant to § 404 of the First Step Act,

Stat. 5194,

5222 (2018), which permits a district court to impose a reduced sentence on a defendant

convicted of a covered offense as if certain provisions of the Fair Sentencing Act of 2010,

Stat. 2372, 2372 (2012), were in effect at the time the defendant

committed the covered offense. Section 404(b) of the First Step Act defines a covered

offense as “a violation of a Federal criminal statute, the statutory penalties for which were

modified by section 2 or 3 of the Fair Sentencing Act.” Brown was convicted of possessing

with intent to distribute five grams or less of crack cocaine, in violation of

(a)(1), (b)(1)(C) (2012). Because the Fair Sentencing Act did not modify the

statutory penalties for that offense, Brown’s offense is not a covered offense and the district

court correctly denied Brown’s motion to reduce his sentence pursuant to § 404 of the First

Step Act.

We therefore affirm the district court’s order. 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

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