     Case: 14-40037      Document: 00513043103         Page: 1    Date Filed: 05/14/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals

                                    No. 14-40037
                                                                                   Fifth Circuit

                                                                                 FILED
                                  Summary Calendar                           May 14, 2015
                                                                            Lyle W. Cayce
UNITED STATES OF AMERICA,                                                        Clerk


                                                 Plaintiff-Appellee

v.

MARKUS DWAYNE CHOPANE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:10-CR-56-1


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
       Markus Dwayne Chopane, federal prisoner # 05662-078, is serving a
180-month term of imprisonment for possession with intent to distribute 50
grams or more of cocaine base. He appeals the district court’s denial of his 18
U.S.C. § 3582(c)(2) motion, in which he sought a sentence reduction pursuant
to the Fair Sentencing Act (FSA) and Amendment 750 to U.S.S.G. § 2D1.1.
Chopane argues that although he was sentenced pursuant to a Federal Rule of


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 14-40037

Criminal Procedure 11(c)(1)(C) plea agreement, the record reflects that the
district court considered the applicable sentencing range under the Sentencing
Guidelines, the 18 U.S.C. § 3553(a) factors, and the plea agreement in
determining the appropriate sentence. He further asserts that the district
court had the discretion to reduce his sentence in view of Freeman v. United
States, 131 S. Ct. 2685 (2011).
      Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence “in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered
by the Sentencing Commission pursuant to 28 U.S.C. § 994(o).” § 3582(c)(2);
see United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). The district
court’s decision whether to reduce a sentence under § 3582(c)(2) is reviewed for
an abuse of discretion, and its interpretation of the Guidelines is reviewed
de novo. United States v. Henderson, 636 F.3d 713, 717 (5th Cir. 2011).
      Chopane was sentenced pursuant to a Rule 11(c)(1)(C) plea agreement
to 180 months of imprisonment and five years of supervised release. The plea
agreement did not expressly state that the sentence would be determined
pursuant to the Sentencing Guidelines and the 180-month sentence was not
based on the advisory guidelines range. The district court accepted the plea
agreement and sentenced Chopane in accordance with it. Because Chopane’s
sentence was not derived from the quantity of cocaine involved in the offense
under the Guidelines, the district court had no authority to reduce Chopane’s
sentence under § 3582(c)(2). See U.S.S.G. § 1B1.10(a)(2)(B); Dillon v. United
States, 560 U.S. 817, 826-27 (2010). The district court did not have discretion
to reduce Chopane’s sentence under Freeman because the plea agreement did
not expressly state that the sentence would be determined pursuant to the
Sentence Guidelines, and the sentence specified by the agreement was not



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                               No. 14-40037

based on the applicable advisory guidelines range. See Freeman, 131 S. Ct. at
2699-2700 (Sotomayor, J., concurring). Therefore, the district court did not
abuse its discretion in denying Chopane’s § 3582(c)(2) motion. See Henderson,
636 F.3d at 717.
     AFFIRMED.




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