     Case: 15-41730      Document: 00513754935         Page: 1    Date Filed: 11/10/2016




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

                                    No. 15-41730                          FILED
                                  Summary Calendar                November 10, 2016
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSHUA SIMMONS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:07-CR-189-1


Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Joshua Simmons, federal prisoner # 14633-078, pleaded guilty in 2008
to conspiracy to distribute and to possess with intent to distribute
methamphetamine in violation of 21 U.S.C. § 846. He appeals the denial of his
motion for a reduction of his sentence under 18 U.S.C. § 3582(c)(2).
       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


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-41730

imprisonment based on a sentencing range that has subsequently been lowered
by the Sentencing Commission.” § 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,
with guideline interpretations reviewed de novo, and findings of fact for clear
error. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009).
       Simmons challenges the district court’s conclusion that he is ineligible
for a sentence reduction on the ground that his sentence was based on a plea
agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) rather
than a subsequently lowered guidelines range. A defendant whose sentence
was
       imposed under a Rule 11(c)(1)(C) plea agreement might be eligible
       for a reduction under § 3582(c)(2) where the agreement: (i) calls
       ‘for the defendant to be sentenced within a particular Guidelines
       sentencing range;’ (ii) provides ‘for a specific term of
       imprisonment—such as a number of months—but also make clear
       that the basis for the specified term is a Guidelines sentencing
       range applicable to the offence to which the defendant pleaded
       guilty;’ or (iii) ‘explicitly employs a particular Guidelines
       sentencing range to establish a term of imprisonment.’
United States v. Benitez, 822 F.3d 807, 811 (5th Cir. 2016) (quoting Freeman v.
United States, 564 U.S. 522, 538-40 (2011) (Sotomayor, J., concurring)).
       The plea agreement did not call for Simmons (i) to be sentenced within a
particular sentencing range; (ii) provide for a specific term of imprisonment
that was based on a sentencing range applicable to his offense; or (iii) explicitly
employ any particular range for determining his sentence. See Benitez, 822
F.3d at 811. The agreement does not reference any particular sentencing range
or offense level. The parties stipulated to a sentence of 240 months, and there
is nothing in the plea agreement tethering that sentence to the drug quantity
involved in the offense or to the guidelines range. The only basis for the


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                                 No. 15-41730

upward departure in the record is the district court’s reference in its statement
of reasons to the binding plea agreement accepted by the court. Because
Simmons’s sentence was not “based on” the drug quantity involved in the
offense or the advisory guidelines range, he was not eligible for a sentence
reduction under § 3582(c)(2). See U.S.S.G. § 1B1.10(a)(2)(B). Thus, the district
court did not abuse its discretion by denying his § 3582(c)(2) motion. See
Benitez, 822 F.3d at 812.
      AFFIRMED.




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