     Case: 15-41160   Document: 00513496887    Page: 1   Date Filed: 05/09/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit
                               No. 15-41160                            FILED
                             Summary Calendar                       May 9, 2016
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA,

                                          Plaintiff-Appellee

v.

ROGELIO BENITEZ,

                                          Defendant-Appellant


                Appeal from the United States District Court
                     for the Eastern District of Texas


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:
      Pursuant to a plea agreement, Rogelio Benitez, federal prisoner # 83711-
279, pleaded guilty to possession with the intent to distribute a controlled
substance in violation of 21 U.S.C. § 841(a)(1). He was sentenced to 63 months
of imprisonment and four years of supervised release. In his plea agreement,
the parties stipulated pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C) that an appropriate sentence in the case was 63 months of
imprisonment. The parties also stipulated that Benitez possessed more than
15 kilograms but less than 50 kilograms of cocaine, and that his base offense
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                                     No. 15-41160

level was 34 pursuant to U.S.S.G. § 2D1.1(c)(3), 1 subject to a potential three
level reduction for acceptance of responsibility pursuant to § 3E1.1. Consistent
with the plea agreement, in the final presentence report (PSR), the probation
officer determined Benitez was personally responsible for 20 kilograms of
cocaine, which triggered a base offense level of 34, which was reduced by three
levels for acceptance of responsibility and assistance to authorities. Thus, the
probation officer determined that Benitez’s total offense level was 31. With a
criminal history category of II, the probation officer determined Benitez’s
advisory guideline sentencing range was 121-151 months of imprisonment.
      Benitez did not object to the PSR, and the district court adopted the PSR
without change. The district court also accepted the plea agreement and
sentenced Benitez to 63 months of imprisonment. On March 2, 2015, Benitez
filed the instant pro se motion for a sentence reduction under § 3582(c)(2) based
on the retroactive Amendment 782 to the Sentencing Guidelines.                    In his
motion, he argued that the district court, in calculating his sentence, referred
to the offense levels for controlled substances set forth in the Drug Quantity
Table in § 2D1.1(c).       Because Amendment 782 applies retroactively, see
§ 1B1.10(d), and could have the effect of reducing his offense level, Benitez
argued that he was entitled to a reduction in his sentence from 63 months to
51 months. Benitez also argued that it was his “belief that his sentence was
not based” upon the parties’ stipulated 63-month sentence set forth in his Rule
11(c)(1)(C) plea agreement. The district court denied the motion, finding that
Benitez’s “[s]entence was imposed pursuant to a binding 11(c)(1)(C) plea



      1  Effective November 1, 2015, Amendment 782 to the Sentencing Guidelines
redesignated U.S.S.G. § 2D1.1(c)(3) as § 2D1.1(c)(4) and lowered the offense level for the
commission of the offenses listed therein from 34 to 32. See United States Sentencing
Commission, Guidelines Manual, Supp. to Appendix C, Amendment 782, p. 65 (Nov. 1, 2015).



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agreement, which was not related to substantial assistance, and which was
well below the guideline range.”
      On appeal, Benitez argues that he is entitled to a reduction in his
sentence from 63 months to 43 months under § 3582(c)(2), based on the
retroactive effect of Amendment 782. Citing Freeman v. United States, 131
S. Ct. 2685 (2011), Benitez argues that, although the district court sentenced
him to the 63-month sentence stipulated in his Rule 11(c)(1)(C) plea
agreement, his sentence “was based on the guidelines.” In support, Benitez
avers that “[i]n the agreement, the parties agree that the base offense level is
34; that no other specific offense characteristics apply; that the government
will recommended [sic] the three level reduction for acceptance of
responsibility . . . ; and that no other Chapter 3 adjustments apply.” Benitez
further avers that these provisions provide “more than enough detail for the
court to rationally infer that the guideline range was used in determining the
agreed-on sentence.”
      The Government argues that the district court did not abuse its
discretion in denying Benitez’s § 3582(c)(2) motion. The Government contends
that Benitez pleaded guilty pursuant to a Rule 11(c)(1)(C) agreement which
“did not state, or even imply, that the agreed-upon sentence was to be
calculated under a sentencing guideline range.” The Government asserts that
because Benitez’s stipulated sentence of 63 months was not tied to a guidelines
range, Benitez is not entitled to a sentence reduction under Amendment 782.
      Section 3582(c)(2) provides that a defendant’s sentence may be modified
if 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); see United States v. Doublin, 572 F.3d 235, 237 (2009). Section
3582(c)(2) applies only to retroactive guidelines amendments as set forth in



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§ 1B1.10(a). See Dillon v. United States, 560 U.S. 817, 826 (2010). Amendment
782 applies retroactively. See § 1B1.10(d). The Supreme Court has prescribed
a two-step inquiry for a district court that is considering a § 3582(c)(2) motion.
Dillon, 560 U.S. at 826. The district court must first determine whether the
defendant is eligible for a sentence reduction under § 1B1.10 and then may
proceed to consider whether a reduction is warranted in whole or in part under
18 U.S.C. § 3553(a)’s sentencing factors. Dillon, 560 U.S. at 826-27. However,
a defendant is not eligible for a reduction under § 3582(c)(2) if a qualifying
amendment “does not have the effect of lowering the defendant’s applicable
guideline range.” § 1B1.10(a)(2)(B); see also § 1B1.10, cmt. n.1(A).
      This court reviews a district court’s decision “whether to reduce a
sentence pursuant to . . . § 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).
      In Freeman, the Supreme Court considered whether a defendant who
pleads guilty in exchange for a specific sentence under a Rule 11(c)(1)(C) plea
agreement is eligible for a sentence reduction. Freeman, 131 S. Ct. at 2692-95.
A plurality of the Court concluded that § 3582 “modification proceedings should
be available to permit the district court to revisit a prior sentence to whatever
extent the sentencing range in question was a relevant part of the analytic




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framework the judge used to determine the sentence or to approve the
agreement.” Id. at 2692-93 (plurality opinion).
      There is no majority opinion in Freeman.              The general rule for
ascertaining the holding of a case in which there is no majority opinion is that
“the holding of the Court may be viewed as that position taken by those
Members who concurred in the judgment[] on the narrowest grounds.” Marks
v. United States, 430 U.S. 188, 193 (1977) (internal quotation marks and
citation omitted).   In an opinion that did not involve a Rule 11(c)(1)(C)
agreement, this court observed that “Justice Sotomayor’s concurring opinion is
widely considered to express the holding in Freeman, as the narrowest grounds
on which a majority of the Court agreed in reaching its judgment.” United
States v. Banks, 770 F.3d 346, 351 n.4 (5th Cir. 2014). We previously employed
Justice Sotomayor’s approach in an unpublished opinion. United States v.
Chopane, 603 F. App’x 325, 326 (5th Cir.), cert. denied, 136 S. Ct. 268 (2015).
Today, we explicitly adopt Justice Sotomayor’s concurring opinion in Freeman,
and hold that it establishes the criteria in this circuit for determining whether
the sentence of a defendant who pleads guilty pursuant to a Rule 11(c)(1)(C)
plea agreement is “based on a sentencing range that has been lowered by the
Sentencing Commission.” § 3582(c)(2).
      According to Justice Sotomayor, “it is the binding plea agreement that is
the foundation for the term of imprisonment” under a Rule 11(c)(1)(C)
agreement, not the district court’s guidelines calculations, and “[a]t the
moment of sentencing, the court simply implements the terms of the
agreement it has already accepted.” Id. at 2696 (Sotomayor, J., concurring).
That is so even though “the parties to a [Rule 11(c)(1)(C)] agreement may have
considered the Guidelines in the course of their negotiations.” Id. at 2697.
Nevertheless, Justice Sotomayor recognized that a sentence imposed under a



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Rule 11(c)(1)(C) plea agreement might be eligible for 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 offense to which the defendant pleaded guilty;” or (iii) “explicitly employs
a particular Guidelines sentencing range to establish the term of
imprisonment.”    Id. at 2697-98.    Justice Sotomayor’s holding is generally
consistent with prior precedent of this court. See United States v. Thornton,
609 F.3d 368, 373 (5th Cir. 2010) (holding that sentence was not “based on”
Guidelines where Rule 11(c)(1)(C) plea agreement “never stated that the
stipulated sentence depended on, or was even connected to, the applicable
sentencing range,” and there was no indication that the “district court based
its [sentencing] decision on a guideline calculation”).
      In this case, Benitez’s plea agreement did not call for him (i) “to be
sentenced within a particular Guidelines sentencing range;” (ii) provide “for a
specific term of imprisonment” based on “a Guidelines sentencing range
applicable to the [subject] offense;” or (iii) “explicitly employ[] a particular
Guidelines sentencing range to establish [Benitez’s] term of imprisonment.”
See Freeman, 131 S. Ct. at 2697-98 (Sotomayor, J., concurring). Rather, the
agreement merely recognized that Benitez’s base offense level would be 34
because of the amount of cocaine that he possessed, and that he might be
eligible for a reduction for acceptance of responsibility under § 3E1.1. The
parties stipulated that a sentence of 63 months was appropriate, and nothing
in the record tethers that sentence to either the quantity of cocaine involved in
the offense or the corresponding advisory guideline range of 121-151 months
of imprisonment. Because Benitez’s sentence was not “based on” the quantity



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of cocaine involved or the advisory guideline range, the district court had no
authority to reduce it under § 3582(c)(2). See § 1B1.10(a)(2)(B). Therefore, the
district court did not abuse its discretion in denying Benitez’s § 3582(c)(2)
motion. See Henderson, 636 F.3d at 717. Accordingly, the district court’s
judgment is AFFIRMED.




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