     Case: 19-11217      Document: 00515497149         Page: 1    Date Filed: 07/21/2020




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

                                                                             FILED
                                      No. 19-11217                       July 21, 2020
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

              Plaintiff – Appellee

v.

TAMEKA ESTELLE BENNETT,

              Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:10-CR-345-2


Before SMITH, HIGGINSON, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       Appellant Tameka Estelle Bennett (“Bennett”) appeals the district
court’s denial of her motion seeking a sentence reduction, under 18 U.S.C.
§ 3582(c)(2), based on Amendment 782 to the United States Sentencing
Guidelines (“Sentencing Guidelines”). Finding no reversible error, we
AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-11217     Document: 00515497149     Page: 2   Date Filed: 07/21/2020



                                  No. 19-11217
                                        I.
      In 2011, a jury convicted Tameka Estelle Bennett of the crimes of
conspiracy to obstruct justice through evidence concealment, in violation of 18
U.S.C. §§ 1512(b)(2)(B) and 1512(k) (Count One); aiding and abetting the
obstruction of justice through evidence concealment, in violation of
§ 1512(b)(2)(B), § 1512(c)(1) and 18 U.S.C. § 2 (Count Two); one count of
obstructing the due administration of justice, in violation of 18 U.S.C. § 1503(a)
(Count Three); and one count of possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Five). Applying the
Sentencing Guidelines Manual effective November 1, 2011, the presentence
report (“PSR”) grouped the counts and used U.S.S.G. § 2K2.1 to calculate
Bennett’s sentencing range. The PSR noted that Bennett had possessed the
firearm in connection with the distribution of a controlled substance and, thus,
based on the cross-reference in § 2K2.1(c)(1)(A), applied U.S.S.G. § 2X1.1.
      Pursuant to § 2X1.1(a), the PSR applied the provision for the substantive
offense of distribution of a controlled substance, U.S.S.G. § 2D1.1. Having
determined that Bennett was accountable for 5.05 grams of methamphetamine
(actual), the PSR assigned a base offense level of 26 under § 2D1.1(c)(7). Two
levels were added under § 2D1.1(b)(1) because a dangerous weapon was
possessed, resulting in a total base offense level of 28. Following enhancements
for her role in the offense and obstruction of justice, pursuant to U.S.S.G. §
3B1.4 and § 3C1.1, Bennett received a total offense level of 32. That offense
level, combined with Bennett’s criminal history category of II, resulted in a
Sentencing Guidelines imprisonment range of 135 to 168 months (except as
limited by statutory maximum penalties). See U.S.S.G. § 5G1.1(a).
      In May 2012, the district court sentenced Bennett to concurrent terms of
180 months of imprisonment on Count Two and 120 months of imprisonment
on Counts One, Three, and Five, for a total of 180 months of imprisonment.
                                        2
    Case: 19-11217    Document: 00515497149     Page: 3   Date Filed: 07/21/2020



                                 No. 19-11217
The district court explained that it was imposing a sentence outside of the
advisory guidelines system based on its consideration of the Sentencing
Guidelines range and the factors set forth in 18 U.S.C. § 3553(a). On direct
appeal, this court affirmed Bennett’s conviction on Counts Two, Three, and
Five, but vacated her conviction on Count One, and remanded the case for the
entry of a revised sentence. See United States v. Coppin, 569 F. App’x 326, 339
(5th Cir. 2014). In August 2014, the district court, on remand, determined that
a new sentencing hearing was not required, and entered an amended
judgment, again sentencing Bennett to a total of 180 months’ imprisonment—
180 months of imprisonment on Count Two and 120 months of imprisonment
on Counts Three and Five with all sentences to be served concurrently.
      In December 2014 and June 2015, Bennett filed motions, pursuant to 18
U.S.C. § 3582(c)(2), seeking a reduction in her base offense level under
Amendment 782 to the Sentencing Guidelines. Denying the motions, in
February 2016, the district court reasoned that Bennett did not “meet the
criteria set forth in § 3582(c)” because her non-Guidelines sentence “was not
based upon a sentencing range that [had] subsequently been lowered by an
amendment to the sentencing guidelines.” According to the district court, it
“found that a 180-month sentence was reasonable and appropriate” based on
the § 3553(a) factors, including Bennett’s criminal history and the facts of the
case, as well as the court’s “experience in sentencing defendants who have
committed crimes of this nature.” After noting that § 3582(c)(2) did not compel
a sentence reduction, the district court reiterated its determination that a
sentence of 180 months was appropriate. Bennett’s subsequent appeal from
the district court’s order was dismissed for want of prosecution.
      In 2018, Bennett filed a third § 3582(c)(2) motion seeking a sentence
reduction under Amendment 782. The district court denied the motion. The
district court reasoned that its prior order denying Bennett’s 2014 and 2015
                                       3
    Case: 19-11217     Document: 00515497149      Page: 4   Date Filed: 07/21/2020



                                  No. 19-11217
motions based on Amendment 782 was res judicata as to the 2018 motion.
Additionally, the district court determined that Bennett’s 2018 motion “lacks
merit for the same reasons.” Bennett did not appeal.
      In 2019, Bennett filed the instant § 3582(c)(2) motion based on
Amendment 782. Noting that the motion was Bennett’s fourth request for
§ 3582(c)(2) relief, the district court recounted its reasons for denying the prior
motions, and concluded that Bennett’s “repeated requests for the same relief
on the same basis are amounting to an abuse of the [c]ourt.” The district court
therefore denied the motion and ordered that any future § 3582(c)(2) motions
seeking relief under Amendment 782 “be docketed for administrative purposes
only and immediately terminated.”
       Bennett timely appealed, proceeding pro se and in forma pauperis.
Bennett has filed an appellant’s brief, but the government has not filed an
appellee’s brief.   Instead, the government submitted a letter stating that it
would not be participating in the appeal, because the district court denied
Bennett’s pro se motion without the government’s participation, unless the
court requested the government’s response.
                                        II.
      Pursuant to the Sentencing Reform Act of 1984, the United States
Sentencing Commission establishes Sentencing Guidelines based on a
defendant’s criminal history and the seriousness of the defendant’s offense.
Hughes v. United States, 138 S. Ct. 1765, 1772 (2018). “In combination, these
two factors yield a range of potential sentences for a district court to choose
from in sentencing a particular defendant.” Id. The Supreme Court’s decision
in United States v. Booker, 543 U.S. 220 (2005) rendered the Sentencing
Guidelines advisory rather than mandatory. But a district court still “must
consult those Guidelines and take them into account when sentencing.”
Hughes, 138 S. Ct. at 1772. Accordingly, although the “[Sentencing] Guidelines
                                        4
    Case: 19-11217      Document: 00515497149   Page: 5   Date Filed: 07/21/2020



                                 No. 19-11217
should be the starting point and the initial benchmark,” district courts may
impose sentences within statutory limits based on appropriate consideration
of all of the factors listed in 18 U.S.C. § 3553(a). Pepper v. United States, 562
U.S. 476, 490 (2011). “Even if the sentencing judge sees a reason to vary from
the Guidelines, if the judge uses the sentencing range as the beginning point
to explain the decision to deviate from it, then the Guidelines are in a real
sense the basis for the sentence.” Hughes, 138 S. Ct. at 1775 (internal
quotations omitted).
      Where a defendant has been sentenced to a term of imprisonment based
on a sentencing range that subsequently is lowered by the Sentencing
Commission, pursuant to 28 U.S.C. § 994(o), the district court is authorized,
under 18 U.S.C. § 3582(c)(2), to modify the defendant’s sentence so long as the
reduction is consistent with the applicable policy statements. See United States
v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009).        The Supreme Court has
prescribed a two-step inquiry for a district court that is considering a
§ 3582(c)(2) motion for reduction. Dillon v. United States, 560 U.S. 817, 826
(2010). First, the district court must decide whether a reduction is consistent
with U.S.S.G. § 1B1.10 by determining the defendant’s eligibility for a
reduction and the extent of the authorized reduction. Dillon, 560 U.S. at 826-
27. Only if the defendant is eligible for a reduction must a district court
consider the applicable § 3553(a) factors to determine whether that reduction
is warranted, either in whole or in part, under the particular circumstances of
the case. Id. at 827.
      Amendment 782 modified the drug quantity table set out in § 2D1.1(c),
effectively lowering most drug-related base offense levels by two levels. See
U.S.S.G., App. C., Amend. 782. On November 1, 2015, Amendment 782 became
retroactively applicable to defendants sentenced prior to its November 1, 2014
effective date. See U.S.S.G., App. C, Amend. 788. Because Amendment 782 is
                                       5
      Case: 19-11217     Document: 00515497149       Page: 6    Date Filed: 07/21/2020



                                   No. 19-11217
listed in § 1B1.10(d), it provides a valid basis for a § 3582(c)(2) motion. See
§ 1B1.10(a)(1). A reduction is not authorized, however, if Amendment 782
“does not have the effect of lowering the defendant’s applicable guideline
range.” § 1B1.10(a)(2)(B); see also § 1B1.10, comment. (n.1(A)). The “applicable
guideline range” is the Sentencing Guidelines range that applies based upon
the    offense   level   and   criminal    history   category    determined     under
U.S.S.G. § 1B1.1(a), and before the court’s consideration of any departures or
variances. § 1B1.10, comment. (n.1(A)).
       The district court’s decision whether to reduce a sentence under
§ 3582(c)(2) is reviewed for an abuse of discretion. United States v. Henderson,
636 F.3d 713, 717 (5th Cir. 2011). However, this court reviews de novo whether
a district court has authority to reduce a sentence under § 3582(c)(2). United
States v. Jones, 596 F.3d 273, 276 (5th Cir. 2010). If error occurs, reversal is
not warranted if the error was harmless. Id. Thus, where a district court has
misapplied the Sentencing Guidelines, remand for resentencing is not
required where “it is clear that the district court would have imposed the same
sentence.” United States v. Garcia, 655 F.3d 426, 432 (5th Cir. 2011) (internal
quotations omitted).
                                          III.
       In denying Bennett’s request for sentence reduction based on
Amendment 782’s change to the drug-related base offense levels found in the
drug quantity table set forth in § 2D1.1(c), the district court concluded
“3582(c)(2) [does] not compel a reduction in the sentence” because Bennett’s
“sentence was outside the advisory guideline system, and it was not based upon
a sentencing range that was subsequently lowered by an amendment to the
sentencing guidelines.” Notably, however, Bennett was sentenced to serve a
term of imprisonment of 180 months and, with a total offense level of 32 and
criminal history category of II, was determined to have a guidelines
                                           6
    Case: 19-11217     Document: 00515497149     Page: 7   Date Filed: 07/21/2020



                                  No. 19-11217
imprisonment range of 135 to 168 months for Count Two and 120 months for
the remaining counts. Thus, on the record before us, it is not inconceivable that
the 135 to 168 range bore some relationship to the 180-month sentence of
imprisonment ultimately imposed by the district court. Even so, remand for
resentencing is not warranted in this instance, because the record likewise
makes abundantly “clear that the district court would have imposed the same
sentence” if it had treated Bennett’s sentence as one based upon a sentencing
range that was subsequently lowered by an amendment to the Sentencing
Guidelines.
      To start, the sentencing transcript reflects that the district court chose a
sentence of 180 months’ of imprisonment having considered the applicable
Sentencing Guidelines; the factors of 18 U.S.C. § 3553(a); its experience in
sentencing individuals in similar kinds of cases; Bennett’s extensive
involvement of her teenage daughter in Bennett’s criminal activities, showing
a complete lack of responsibility to her daughter; and Bennett’s failure to take
responsibility for any of her actions.
      As further evidence of the district court’s strong condemnation of
Bennett’s behavior, the district court also announced at Bennett’s 2012
sentencing: (1) its recommendation that Bennett serve her sentence as far
away from Texas as possible—either Maine or the state of Washington; (2) its
intent that Bennett’s contact with her daughter be supervised during her
prison term and whilst on supervised release; (3) its belief that it would be in
Bennett’s daughter’s best interest “to have no more contact with [Bennett] ever
again, period, end of it . . . [and that] there is nothing about [Bennett] in [the
court’s] opinion that’s going to be helpful to [the] child.” To this, the district




                                         7
     Case: 19-11217       Document: 00515497149          Page: 8     Date Filed: 07/21/2020



                                       No. 19-11217
court added: “I didn’t go as high as maybe you deserve in this case but certainly
you deserve all that I gave you.” (Emphasis added.). 1
       Two years later, upon this court’s vacatur of the judgment of conviction
and sentence as to Count One, the district court, on remand, was charged with
resentencing Bennett. Again, despite the absence of the conviction for Count
One, the district court determined an aggregate sentence of 180 months’
imprisonment was reasonable.
       The district court’s post-sentencing rulings—subsequent to the
November 2015 retroactive effective date of Amendment 782—also are
extremely telling, leaving no doubt as to the district court’s assessment of the
continued propriety of Bennett’s sentence. Specifically, the district court has
unequivocally reiterated in each of the three orders it has issued—addressing
the four § 3582 motions for reduction filed by Bennett—that it finds a sentence
of 180 months’ imprisonment to be warranted. Indeed, in the most recent
order, dated October 2019, the district court characterized Bennett’s “repeated
requests for the same relief on the same basis . . . as an abuse of the Court,”
that “impairs the justice system by wasting scarce judicial resources,” and
went so far as to order that any “additional motions pursuant to 18 U.S.C.




       1 It is worth noting that the government’s motion for upward department and variance
requested that Bennett be sentenced to not less than 360 months of imprisonment. In support
of this request, the government argued Bennett’s criminal history category of II did not
adequately address her criminal background and that Bennett continually put the children
in her family—her teenage daughter, her two-year-old grandson, and her teenage niece—and
the community at risk, such that the case was “outside the heartland” of most gun and
obstruction of justice cases. On this point, the government maintains that Bennett drove
drunk with her two-year old grandson in the car; bypassed the alcohol Breathalyzer installed
in her car by having her daughter blow into it; involved her daughter and niece in
transporting and hiding methamphetamine and evidence of robbery—including guns—
several times; allowed a known sex offender, with a proclivity for teenage girls, to live in her
house in violation of sex offender requirements and without any regard for her daughter’s
safety; and routinely sold drugs from the house in which her minor children lived.
                                               8
    Case: 19-11217    Document: 00515497149    Page: 9   Date Filed: 07/21/2020



                                No. 19-11217
§ 3582(c) [and] seeking relief under Amendment 782 . . . be docketed for
administrative purposes only and immediately terminated.”
      Given the foregoing, even if we assume, without deciding, that the
district court committed technical error when it referred to Bennett’s sentence
as one “not based upon a sentencing range that was subsequently lowered by
an amendment to the sentencing guidelines,” the error, if any, was harmless.
As the district court has stated, no less than five times, it has determined a
total sentence of 180 months’ imprisonment to be appropriate. Requiring the
district court to do so a sixth time would simply waste judicial resources.
Accordingly, the judgment of the district court is AFFIRMED.




                                      9
