     Case: 17-30439      Document: 00514275834         Page: 1    Date Filed: 12/18/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fif h Circuit
                                    No. 17-30439                                    FILED
                                  Summary Calendar                          December 18, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

TREMELL ARMSTEAD, also known as Mel Armstead,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CR-197-4


Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
       Tremell Armstead, federal prisoner # 31567-034, is serving a 180-month
prison sentence for conspiring to distribute and possess with intent to
distribute one kilogram or more of heroin. He appeals the district court’s
denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2) based
on Amendment 782 to the United States Sentencing Guidelines, which lowered
the base offense levels in the drug quantity table of U.S.S.G. § 2D1.1(c).


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-30439    Document: 00514275834     Page: 2   Date Filed: 12/18/2017


                                 No. 17-30439

      In his sole issue on appeal, Armstead argues that the district court erred
in determining that it was not authorized to consider a § 3582(c)(2) sentence
reduction where the sentence was imposed pursuant to a binding plea
agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) and not
expressly tied to the Guidelines.    Specifically, he asserts that this court’s
adoption in United States v. Benitez, 822 F.3d 807 (5th Cir. 2016), of Justice
Sotomayor’s concurrence in Freeman v. United States, 564 U.S. 522 (2011), “is
erroneous because it misapplies the rule for determining the holding of a
fractured Supreme Court opinion, and because the rule it adopts is itself
erroneous.” Armstead acknowledges that this argument is foreclosed by circuit
precedent, and he raises the issue to preserve it for further review.
      Accordingly, the judgment of the district court is AFFIRMED.




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