     Case: 08-30611 Document: 00511463157 Page: 1 Date Filed: 05/02/2011




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

                                                 FILED
                                                                             May 2, 2011

                                       No. 08-30611                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

MORRIS STEWARD,

                                                   Defendant - Appellant




                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:05-CR-7-1


Before REAVLEY, GARZA, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Morris Steward appeals from the denial of his 18 U.S.C. § 3582(c)(2)
motion for a reduction in sentence. We AFFIRM.
                    FACTUAL AND PROCEDURAL HISTORY
       In 2005, Steward pled guilty to two counts of distribution of five or more
grams of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B).
His plea agreement recited that Steward was facing a total of four narcotics
counts, a multi-million dollar fine, and a term of imprisonment between five and

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-30611 Document: 00511463157 Page: 2 Date Filed: 05/02/2011



                                  No. 08-30611

40 years. In exchange for the guilty plea to two of the counts, the government
agreed to dismiss the remaining two counts, waive the fine, and seek a reduced
sentence. The parties agreed in the plea “that a specific sentencing range is
appropriate in the disposition of this case, to wit: a term of imprisonment of 97
months,” and further agreed that “should the Court refuse to impose the
stipulated sentence, the defendant or the Government has the option of
declaring this plea agreement null and void.”
      The district court initially declined to accept or reject the plea agreement,
stating that it would defer its decision until the completion of a Pre-Sentence
Report (“PSR”). The PSR was completed and no objections were submitted by
either party. At sentencing, the court accepted the PSR:
      The Court agrees with the conclusions in the [PSR], and taking into
      account the advisory provisions of the United States Sentencing
      Guidelines, finds the applicable guideline range in this case to be:
      Total offense level 29; criminal history category II, which would
      indicate 97 to 121 months imprisonment; probation is not
      applicable; four to five years supervised release; $15,000 to $4
      million fine, plus cost of imprisonment and supervision; $200 special
      assessment; and restitution is not applicable.

The district court granted the government’s motion for a three-level reduction
for acceptance of responsibility pursuant to Section 3E1.1 of the Sentencing
Guidelines. The court then accepted the plea agreement and sentenced Steward
to 97 months of imprisonment, five years of supervised release, no fine, and a
mandatory $200 special assessment.
      In 2008, Steward filed a motion under 18 U.S.C. § 3582(c)(2) seeking a 19-
month reduction in his sentence. He sought to take advantage of the 2007
amendments to the Sentencing Guidelines, which lowered the sentencing ranges
applicable to certain crack cocaine convictions. See United States v. Caulfield,
634 F.3d 281, 283 (5th Cir. 2011). The district court denied relief and Steward
appealed. His appeal was once remanded to the district court for factfinding

                                        2
    Case: 08-30611 Document: 00511463157 Page: 3 Date Filed: 05/02/2011



                                  No. 08-30611

that is no longer relevant, and the appeal was also held pending the resolution
of two cases that have now been decided.
                                  DISCUSSION
        In his plea agreement, Steward waived his right to appeal or collaterally
attack his sentence unless it exceeded the statutory maximum.             Section
3582(c)(2) motions are not considered an “appeal” or “collateral proceeding”
under the terms of a general waiver of appeal. United States v. Cooley, 590 F.3d
293, 297 (5th Cir. 2009). This is because such “motions do not contest but rather
bring to the court’s attention changes in the guidelines that allow for a sentence
reduction.” Id. (quotation marks and citation omitted). Steward’s appeal waiver
does not bar our review.
        We next consider whether the district court had jurisdiction to reduce
Steward’s sentence, considering that he received a stipulated sentence pursuant
to Federal Rule of Criminal Procedure 11(c)(1)(C). We have previously held in
an unpublished and thus nonprecedential opinion that Section 3582(c)(2) relief
was unavailable to a defendant who received a stipulated sentence under that
Rule.    United States v. Brown, 71 Fed. App’x 383, 384 (5th Cir. 2003)
(unpublished) (applying Rule 11 as then-organized). More recently, we reviewed
caselaw from other circuits to conclude that in these situations, “wooden rules
will not do.” United States v. Garcia, 606 F.3d 209, 214 (5th Cir. 2010). “The
jurisdictional question is whether the sentence was ‘based on’ the subsequently
amended crack-offense guidelines, and answering that question requires that we
examine the nuances of both the plea agreement and the sentencing transcript
in each particular case.” Id. (citations omitted).
        The district court stated it was “taking into account” the Guidelines;
identified the appropriate Guidelines range of 97-121 months of imprisonment;
accepted the PSR, including its calculation of the Guidelines; and pursuant to
the Guidelines, granted the government’s motion for a three-level reduction in

                                        3
    Case: 08-30611 Document: 00511463157 Page: 4 Date Filed: 05/02/2011



                                  No. 08-30611

sentence for acceptance of responsibility.     Ninety-seven months is not an
arbitrary sentence; it is the lowest end of the Guidelines range that the PSR
concluded was appropriate in light of Steward’s criminal history category and
total offense level. The district court’s April 11, 2008, order denying Section
3582(c)(2) relief confirmed that Steward’s previous sentencing range was 97-121
months. We conclude that Steward’s sentence was based on the Sentencing
Guidelines. Accordingly, there is jurisdiction to consider this appeal. See id.;
United States v. Williams, 609 F.3d 368, 372-73 (5th Cir. 2010).
      The remaining question is whether Steward was entitled to a reduction of
sentence under Section 3582(c)(2). “Plea bargain agreements are contractual in
nature, and are to be construed accordingly. They bind the parties, and, more
importantly, the court, too, is bound once it accepts the plea agreement.” Garcia,
606 F.3d at 215 (quotation marks, brackets, and citations omitted).
      The benefits Steward obtained by negotiating a plea agreement included
the dismissal of two pending narcotics counts, no substantial fine, and a
sentence below the statutory maximum. The appropriate sentencing range for
his offenses and criminal history was 97 to 121 months, yet Steward bargained
for and received a sentence at the very bottom of that range.           The plea
agreement also gave Steward the right to withdraw his plea if the district court
did not accept the 97-month term of imprisonment. This further insulated
Steward from uncertainty and eliminated the chance he could be given an
upward adjustment by the district court.
      We review whether a district court abused its discretion by the denial of
relief under Section 3582(c)(2). Id. By leaving Steward’s sentence unchanged,
the district court continued to enforce the bargain that was entered in the plea
agreement. The district court did not abuse its discretion.
      AFFIRMED.



                                        4
