     Case: 17-40492      Document: 00514304728         Page: 1    Date Filed: 01/11/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 17-40492                                 FILED
                                  Summary Calendar                         January 11, 2018
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOE DELL STERLING,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:10-CR-263-3


Before STEWART, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM: *
       Joe Dell Sterling, federal prisoner # 18324-078, challenges the denial of
his 18 U.S.C. § 3582(c)(2) motion, urging that the district court erred in
determining that he was ineligible for a sentencing reduction. He asserts that
his sentence was tied to a guidelines range as his factual resume stipulated
that he was aware that the conspiracy involved 1000 kilograms or more of
marijuana, which resulted in the same base offense level as was used by the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40492    Document: 00514304728     Page: 2   Date Filed: 01/11/2018


                                 No. 17-40492

probation officer. As a result, Sterling contends that his sentence, which
exceeded the guidelines range calculated by the probation officer, constituted
an upward departure and that he was entitled to a commensurate departure
under the newly applicable guidelines range.
      As the district court determined, appellant was not eligible for a
reduction because his sentence was not “based on a sentencing range that has
subsequently been lowered by the Sentencing Commission.”           § 3582(c)(2).
Rather, the district court sentenced appellant to 240 months in prison based
on his binding agreement under Federal Rule of Criminal Procedure
11(c)(1)(C).   See Freeman v. United States, 564 U.S. 522, 534-40 (2011)
(Sotomayor, J., concurring); United States v. Benitez, 822 F.3d 807, 809-12 (5th
Cir. 2016). Therefore, the district court’s denial of a sentence reduction is
AFFIRMED. See Freeman, 564 U.S. at 534-40 (Sotomayor, J., concurring);
Benitez, 822 F.3d at 809-12.




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