Sealed Appellee v. Sealed Appellant, No. 16-50408 (5th Cir. 2017)

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The court issued a subsequent related opinion or order on August 30, 2018.

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-50408 Summary Calendar United States Court of Appeals Fifth Circuit FILED August 10, 2017 Lyle W. Cayce Clerk SEALED APPELLEE, Plaintiff-Appellee v. SEALED APPELLANT, Defendant-Appellant Appeal from the United States District Court for the Western District of Texas USDC No. 1:13-CR-302-1 Before BENAVIDES, DENNIS, and PRADO, Circuit Judges. PER CURIAM: * The appellant 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 plea agreement stipulated only a maximum term, arrived at after the applicable guidelines range was calculated. He further contends that 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * No. 16-50408 district court erred by failing to consider the 18 U.S.C. § 3553(a) factors before denying his motion. 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 120 months of imprisonment 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). 1 Therefore, we affirm the district court’s denial of a sentence reduction. See Freeman, 564 U.S. at 534-40 (Sotomayor, J., concurring); Benitez, 822 F.3d at 809-12; see also 28 U.S.C. § 2111; United States v. Gonzalez-Balderas, 105 F.3d 981, 984 (5th Cir. 1997). AFFIRMED. Recognizing that his claim is foreclosed by Benitez, appellant nevertheless raises to preserve for possible further review the argument that a § 3582(c)(2) sentence reduction is available to a defendant who pleaded guilty pursuant to a Rule 11(c)(1)(C) agreement in any case where the guidelines range was a relevant part of the analytic framework used by the district court to determine the sentence. 1 2

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