     Case: 12-50169       Document: 00512094556         Page: 1     Date Filed: 12/26/2012




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

                                                                            FILED
                                                                        December 26, 2012
                                     No. 12-50169
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

TERRY BATTLE,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:09-CR-41-1


Before SMITH, DeMOSS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Terry Battle, federal prisoner # 30093-208, pleaded guilty to possession
with intent to distribute five grams or more of cocaine base (crack). He appeals
the denial of his motion for a sentence reduction under 18 U.S.C. § 3582(c) based
on retroactive amendments to the Sentencing Guidelines governing crack
offenses. Battle disputes the district court’s conclusions that the 90-month
sentence was based on a plea agreement pursuant to Federal Rule of Criminal



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50169     Document: 00512094556     Page: 2   Date Filed: 12/26/2012

                                  No. 12-50169

Procedure 11(c)(1)(C) and that the only Sentencing Guidelines on which his
sentence could have been based were the career offender Guidelines.
      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.” § 3582(c)(2); see United States v. Doublin, 572
F.3d 235, 237 (5th Cir. 2009). A reduction is not authorized if the amendment
“does not have the effect of lowering the defendant’s applicable guideline range
because of the operation of another guideline or statutory provision.” U.S.S.G.
§ 1B1.10 cmt. n.1(A). We review the district court’s decision whether to reduce
a sentence under § 3582(c)(2) for an abuse of discretion. United States v. Evans,
587 F.3d 667, 672 (5th Cir. 2009). A court abuses its discretion if it makes an
error of law, and legal issues are reviewed de novo. United States v. Teuschler,
689 F.3d 397, 399 (5th Cir. 2012).
      The record and the Statement of Reasons establish that the sentence was
the result of a Rule 11(c)(1)(C) plea agreement. That alone does not preclude a
§ 3582 sentence reduction because an agreed-upon sentence may still be “based
on” the Sentencing Guidelines. See Freeman v. United States, 131 S. Ct. 2685,
2690-2700 (2011) (plurality and concurrence). Nonetheless, the record further
establishes that the only Guidelines relevant to Battle’s sentence are the career
offender Guidelines. Even though the district court ultimately reduced Battle’s
criminal history category, the sentence remained based on Battle’s career
offender status. See United States v. Carter, 595 F.3d 575, 577-78 (5th Cir. 2010)
(holding that a sentence was “based on” a mandatory statutory minimum
sentence, even though it was lowered under another statute); see also United
States v. Mitchell, 423 F. App’x 365, 365-66 (5th Cir. 2011) (holding that a
reduced career offender sentence was nonetheless based on the career offender
Guidelines).



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    Case: 12-50169    Document: 00512094556    Page: 3   Date Filed: 12/26/2012

                                No. 12-50169

      Battle has failed to show that he was “sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered
by the Sentencing Commission.” § 3582(c)(2). The judgment of the district court
is AFFIRMED.




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