     Case: 16-40571       Document: 00513791853         Page: 1     Date Filed: 12/09/2016




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

                                     No. 16-40571                              FILED
                                   Summary Calendar                     December 9, 2016
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

FELIX RAMIREZ,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:11-CR-37-1


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Felix Ramirez, federal prisoner # 21662-078 and proceeding pro se on
appeal, is serving an 87-month sentence for conspiring to possess, with the
intent to manufacture and distribute, methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1) and 846. He contests the denial of his motion for a sentence
reduction under 18 U.S.C. § 3582(c)(2) based on Amendment 782 to the United
States Sentencing Guidelines, which lowered base-offense levels in the drug


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-40571

quantity table in Guideline § 2D1.1(c).     Citing Freeman v. United States,
Ramirez contends the district court erred in finding him ineligible for a
sentence reduction because he was sentenced pursuant to a Federal Rule of
Criminal Procedure 11(c)(1)(C) plea agreement. 564 U.S. 522, 530 (2011).
      We review a decision “whether to reduce a sentence pursuant to 18
U.S.C. § 3582(c)(2) for abuse of discretion, . . . its interpretation of the
Guidelines de novo, and its findings of fact for clear error”. United States v.
Henderson, 636 F.3d 713, 717 (5th Cir. 2011) (internal quotation marks and
citation omitted). “A court abuses its discretion when the court makes an error
of law or bases its decision on a clearly erroneous assessment of the evidence.
When a court in applying its discretion fails to consider the factors as required
by law, it also abuses its discretion.” United States v. Larry, 632 F.3d 933, 936
(5th Cir. 2011) (internal quotation marks and citation omitted).
      Section 3582(c)(2) grants a district court discretion to modify a
defendant’s sentence if he “has been sentenced to a term of imprisonment
based on a sentencing range that has subsequently been lowered by the
Sentencing Commission”. 18 U.S.C. § 3582(c)(2). But, a defendant sentenced
pursuant to a Rule 11(c)(1)(C) plea agreement may be eligible for a § 3582(c)(2)
reduction only if “the agreement itself employs the particular Guideline
sentencing range applicable to the charged offenses in establishing the term of
imprisonment”. Freeman, 564 U.S. at 540 (Sotomayor, J., concurring).
      Ramirez’ plea agreement does not call for him: to be sentenced within a
particular Guidelines range; to be sentenced to a term of imprisonment based
on a Guidelines range applicable to the offense; or to be sentenced based on a
particular Guidelines range used to establish the prison term. See United
States v. Benitez, 822 F.3d 807, 811 (5th Cir. 2016).       Therefore, because
Ramirez’ Rule 11(c)(1)(C) sentence was not based on a sentencing range



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                                No. 16-40571

lowered by Amendment 782, the court lacked authority to reduce his sentence
under § 3582(c)(2). See Freeman, 564 U.S. at 538–40; Benitez, 822 F.3d at 812.
      AFFIRMED.




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