IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-41730

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSHUA SIMMONS,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:07-CR-189-1

Before BENAVIDES, DENNIS, and PRADO, Circuit Judges. 

PER CURIAM:*

Joshua Simmons, federal prisoner # 14633-078, pleaded guilty in 2008 

to conspiracy to distribute and to possess with intent to distribute 

methamphetamine in violation of 21 U.S.C. § 846. He appeals the denial of his

motion for a reduction of his sentence under 18 U.S.C. § 3582(c)(2).

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 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 10, 2016

Lyle W. Cayce

Clerk

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No. 15-41730

2

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). The district court’s decision whether to 

reduce a sentence under § 3582(c)(2) is reviewed for an abuse of discretion, 

with guideline interpretations reviewed de novo, and findings of fact for clear 

error. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009).

Simmons challenges the district court’s conclusion that he is ineligible 

for a sentence reduction on the ground that his sentence was based on a plea 

agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) rather 

than a subsequently lowered guidelines range. A defendant whose sentence 

was

imposed under a Rule 11(c)(1)(C) plea agreement might be eligible 

for a 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 offence to which the defendant pleaded 

guilty;’ or (iii) ‘explicitly employs a particular Guidelines 

sentencing range to establish a term of imprisonment.’

United States v. Benitez, 822 F.3d 807, 811 (5th Cir. 2016) (quoting Freeman v. 

United States, 564 U.S. 522, 538-40 (2011) (Sotomayor, J., concurring)).

The plea agreement did not call for Simmons (i) to be sentenced within a 

particular sentencing range; (ii) provide for a specific term of imprisonment 

that was based on a sentencing range applicable to his offense; or (iii) explicitly 

employ any particular range for determining his sentence. See Benitez, 822 

F.3d at 811. The agreement does not reference any particular sentencing range 

or offense level. The parties stipulated to a sentence of 240 months, and there 

is nothing in the plea agreement tethering that sentence to the drug quantity 

involved in the offense or to the guidelines range. The only basis for the 

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upward departure in the record is the district court’s reference in its statement 

of reasons to the binding plea agreement accepted by the court. Because 

Simmons’s sentence was not “based on” the drug quantity involved in the 

offense or the advisory guidelines range, he was not eligible for a sentence 

reduction under § 3582(c)(2). See U.S.S.G. § 1B1.10(a)(2)(B). Thus, the district 

court did not abuse its discretion by denying his § 3582(c)(2) motion. See

Benitez, 822 F.3d at 812.

AFFIRMED.

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