IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50169

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

December 26, 2012

Lyle W. Cayce

Clerk

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. 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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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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