IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-11217

UNITED STATES OF AMERICA, 

 Plaintiff – Appellee

v.

TAMEKA ESTELLE BENNETT, 

 Defendant - Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:10-CR-345-2

Before SMITH, HIGGINSON, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Appellant Tameka Estelle Bennett (“Bennett”) appeals the district 

court’s denial of her motion seeking a sentence reduction, under 18 U.S.C. 

§ 3582(c)(2), based on Amendment 782 to the United States Sentencing 

Guidelines (“Sentencing Guidelines”). Finding no reversible error, we 

AFFIRM.

* 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

July 21, 2020

Lyle W. Cayce

Clerk

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I.

In 2011, a jury convicted Tameka Estelle Bennett of the crimes of 

conspiracy to obstruct justice through evidence concealment, in violation of 18 

U.S.C. §§ 1512(b)(2)(B) and 1512(k) (Count One); aiding and abetting the 

obstruction of justice through evidence concealment, in violation of 

§ 1512(b)(2)(B), § 1512(c)(1) and 18 U.S.C. § 2 (Count Two); one count of 

obstructing the due administration of justice, in violation of 18 U.S.C. § 1503(a) 

(Count Three); and one count of possession of a firearm by a convicted felon, in 

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count Five). Applying the 

Sentencing Guidelines Manual effective November 1, 2011, the presentence 

report (“PSR”) grouped the counts and used U.S.S.G. § 2K2.1 to calculate 

Bennett’s sentencing range. The PSR noted that Bennett had possessed the 

firearm in connection with the distribution of a controlled substance and, thus, 

based on the cross-reference in § 2K2.1(c)(1)(A), applied U.S.S.G. § 2X1.1. 

Pursuant to § 2X1.1(a), the PSR applied the provision for the substantive 

offense of distribution of a controlled substance, U.S.S.G. § 2D1.1. Having 

determined that Bennett was accountable for 5.05 grams of methamphetamine 

(actual), the PSR assigned a base offense level of 26 under § 2D1.1(c)(7). Two 

levels were added under § 2D1.1(b)(1) because a dangerous weapon was 

possessed, resulting in a total base offense level of 28. Following enhancements 

for her role in the offense and obstruction of justice, pursuant to U.S.S.G. §

3B1.4 and § 3C1.1, Bennett received a total offense level of 32. That offense 

level, combined with Bennett’s criminal history category of II, resulted in a 

Sentencing Guidelines imprisonment range of 135 to 168 months (except as 

limited by statutory maximum penalties). See U.S.S.G. § 5G1.1(a). 

In May 2012, the district court sentenced Bennett to concurrent terms of 

180 months of imprisonment on Count Two and 120 months of imprisonment 

on Counts One, Three, and Five, for a total of 180 months of imprisonment. 

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The district court explained that it was imposing a sentence outside of the 

advisory guidelines system based on its consideration of the Sentencing 

Guidelines range and the factors set forth in 18 U.S.C. § 3553(a). On direct 

appeal, this court affirmed Bennett’s conviction on Counts Two, Three, and 

Five, but vacated her conviction on Count One, and remanded the case for the 

entry of a revised sentence. See United States v. Coppin, 569 F. App’x 326, 339 

(5th Cir. 2014). In August 2014, the district court, on remand, determined that 

a new sentencing hearing was not required, and entered an amended 

judgment, again sentencing Bennett to a total of 180 months’ imprisonment—

180 months of imprisonment on Count Two and 120 months of imprisonment 

on Counts Three and Five with all sentences to be served concurrently. 

In December 2014 and June 2015, Bennett filed motions, pursuant to 18 

U.S.C. § 3582(c)(2), seeking a reduction in her base offense level under 

Amendment 782 to the Sentencing Guidelines. Denying the motions, in 

February 2016, the district court reasoned that Bennett did not “meet the 

criteria set forth in § 3582(c)” because her non-Guidelines sentence “was not 

based upon a sentencing range that [had] subsequently been lowered by an 

amendment to the sentencing guidelines.” According to the district court, it 

“found that a 180-month sentence was reasonable and appropriate” based on 

the § 3553(a) factors, including Bennett’s criminal history and the facts of the 

case, as well as the court’s “experience in sentencing defendants who have 

committed crimes of this nature.” After noting that § 3582(c)(2) did not compel 

a sentence reduction, the district court reiterated its determination that a 

sentence of 180 months was appropriate. Bennett’s subsequent appeal from 

the district court’s order was dismissed for want of prosecution. 

In 2018, Bennett filed a third § 3582(c)(2) motion seeking a sentence 

reduction under Amendment 782. The district court denied the motion. The 

district court reasoned that its prior order denying Bennett’s 2014 and 2015 

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motions based on Amendment 782 was res judicata as to the 2018 motion. 

Additionally, the district court determined that Bennett’s 2018 motion “lacks

merit for the same reasons.” Bennett did not appeal. 

In 2019, Bennett filed the instant § 3582(c)(2) motion based on 

Amendment 782. Noting that the motion was Bennett’s fourth request for 

§ 3582(c)(2) relief, the district court recounted its reasons for denying the prior 

motions, and concluded that Bennett’s “repeated requests for the same relief 

on the same basis are amounting to an abuse of the [c]ourt.” The district court 

therefore denied the motion and ordered that any future § 3582(c)(2) motions 

seeking relief under Amendment 782 “be docketed for administrative purposes 

only and immediately terminated.” 

Bennett timely appealed, proceeding pro se and in forma pauperis. 

Bennett has filed an appellant’s brief, but the government has not filed an 

appellee’s brief. Instead, the government submitted a letter stating that it 

would not be participating in the appeal, because the district court denied 

Bennett’s pro se motion without the government’s participation, unless the 

court requested the government’s response. 

II.

Pursuant to the Sentencing Reform Act of 1984, the United States 

Sentencing Commission establishes Sentencing Guidelines based on a 

defendant’s criminal history and the seriousness of the defendant’s offense. 

Hughes v. United States, 138 S. Ct. 1765, 1772 (2018). “In combination, these 

two factors yield a range of potential sentences for a district court to choose 

from in sentencing a particular defendant.” Id. The Supreme Court’s decision 

in United States v. Booker, 543 U.S. 220 (2005) rendered the Sentencing 

Guidelines advisory rather than mandatory. But a district court still “must 

consult those Guidelines and take them into account when sentencing.” 

Hughes, 138 S. Ct. at 1772. Accordingly, although the “[Sentencing] Guidelines 

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should be the starting point and the initial benchmark,” district courts may 

impose sentences within statutory limits based on appropriate consideration 

of all of the factors listed in 18 U.S.C. § 3553(a). Pepper v. United States, 562 

U.S. 476, 490 (2011). “Even if the sentencing judge sees a reason to vary from 

the Guidelines, if the judge uses the sentencing range as the beginning point 

to explain the decision to deviate from it, then the Guidelines are in a real 

sense the basis for the sentence.” Hughes, 138 S. Ct. at 1775 (internal 

quotations omitted).

Where a defendant has been sentenced to a term of imprisonment based 

on a sentencing range that subsequently is lowered by the Sentencing 

Commission, pursuant to 28 U.S.C. § 994(o), the district court is authorized, 

under 18 U.S.C. § 3582(c)(2), to modify the defendant’s sentence so long as the 

reduction is consistent with the applicable policy statements. See United States 

v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). The Supreme Court has 

prescribed a two-step inquiry for a district court that is considering a 

§ 3582(c)(2) motion for reduction. Dillon v. United States, 560 U.S. 817, 826 

(2010). First, the district court must decide whether a reduction is consistent 

with U.S.S.G. § 1B1.10 by determining the defendant’s eligibility for a 

reduction and the extent of the authorized reduction. Dillon, 560 U.S. at 826-

27. Only if the defendant is eligible for a reduction must a district court 

consider the applicable § 3553(a) factors to determine whether that reduction 

is warranted, either in whole or in part, under the particular circumstances of 

the case. Id. at 827. 

Amendment 782 modified the drug quantity table set out in § 2D1.1(c), 

effectively lowering most drug-related base offense levels by two levels. See

U.S.S.G., App. C., Amend. 782. On November 1, 2015, Amendment 782 became 

retroactively applicable to defendants sentenced prior to its November 1, 2014 

effective date. See U.S.S.G., App. C, Amend. 788. Because Amendment 782 is 

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listed in § 1B1.10(d), it provides a valid basis for a § 3582(c)(2) motion. See

§ 1B1.10(a)(1). A reduction is not authorized, however, if Amendment 782 

“does not have the effect of lowering the defendant’s applicable guideline 

range.” § 1B1.10(a)(2)(B); see also § 1B1.10, comment. (n.1(A)). The “applicable 

guideline range” is the Sentencing Guidelines range that applies based upon 

the offense level and criminal history category determined under 

U.S.S.G. § 1B1.1(a), and before the court’s consideration of any departures or 

variances. § 1B1.10, comment. (n.1(A)).

The district court’s decision whether to reduce a sentence under 

§ 3582(c)(2) is reviewed for an abuse of discretion. United States v. Henderson, 

636 F.3d 713, 717 (5th Cir. 2011). However, this court reviews de novo whether 

a district court has authority to reduce a sentence under § 3582(c)(2). United 

States v. Jones, 596 F.3d 273, 276 (5th Cir. 2010). If error occurs, reversal is 

not warranted if the error was harmless. Id. Thus, where a district court has 

misapplied the Sentencing Guidelines, remand for resentencing is not 

required where “it is clear that the district court would have imposed the same 

sentence.” United States v. Garcia, 655 F.3d 426, 432 (5th Cir. 2011) (internal 

quotations omitted). 

III.

In denying Bennett’s request for sentence reduction based on 

Amendment 782’s change to the drug-related base offense levels found in the 

drug quantity table set forth in § 2D1.1(c), the district court concluded 

“3582(c)(2) [does] not compel a reduction in the sentence” because Bennett’s 

“sentence was outside the advisory guideline system, and it was not based upon 

a sentencing range that was subsequently lowered by an amendment to the 

sentencing guidelines.” Notably, however, Bennett was sentenced to serve a 

term of imprisonment of 180 months and, with a total offense level of 32 and 

criminal history category of II, was determined to have a guidelines 

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imprisonment range of 135 to 168 months for Count Two and 120 months for

the remaining counts. Thus, on the record before us, it is not inconceivable that 

the 135 to 168 range bore some relationship to the 180-month sentence of 

imprisonment ultimately imposed by the district court. Even so, remand for 

resentencing is not warranted in this instance, because the record likewise 

makes abundantly “clear that the district court would have imposed the same 

sentence” if it had treated Bennett’s sentence as one based upon a sentencing 

range that was subsequently lowered by an amendment to the Sentencing 

Guidelines. 

To start, the sentencing transcript reflects that the district court chose a 

sentence of 180 months’ of imprisonment having considered the applicable 

Sentencing Guidelines; the factors of 18 U.S.C. § 3553(a); its experience in 

sentencing individuals in similar kinds of cases; Bennett’s extensive 

involvement of her teenage daughter in Bennett’s criminal activities, showing 

a complete lack of responsibility to her daughter; and Bennett’s failure to take 

responsibility for any of her actions. 

As further evidence of the district court’s strong condemnation of 

Bennett’s behavior, the district court also announced at Bennett’s 2012 

sentencing: (1) its recommendation that Bennett serve her sentence as far 

away from Texas as possible—either Maine or the state of Washington; (2) its 

intent that Bennett’s contact with her daughter be supervised during her 

prison term and whilst on supervised release; (3) its belief that it would be in 

Bennett’s daughter’s best interest “to have no more contact with [Bennett] ever 

again, period, end of it . . . [and that] there is nothing about [Bennett] in [the 

court’s] opinion that’s going to be helpful to [the] child.” To this, the district 

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court added: “I didn’t go as high as maybe you deserve in this case but certainly 

you deserve all that I gave you.” (Emphasis added.).1 

Two years later, upon this court’s vacatur of the judgment of conviction 

and sentence as to Count One, the district court, on remand, was charged with 

resentencing Bennett. Again, despite the absence of the conviction for Count 

One, the district court determined an aggregate sentence of 180 months’

imprisonment was reasonable. 

The district court’s post-sentencing rulings—subsequent to the 

November 2015 retroactive effective date of Amendment 782—also are

extremely telling, leaving no doubt as to the district court’s assessment of the 

continued propriety of Bennett’s sentence. Specifically, the district court has 

unequivocally reiterated in each of the three orders it has issued—addressing 

the four § 3582 motions for reduction filed by Bennett—that it finds a sentence 

of 180 months’ imprisonment to be warranted. Indeed, in the most recent 

order, dated October 2019, the district court characterized Bennett’s “repeated 

requests for the same relief on the same basis . . . as an abuse of the Court,” 

that “impairs the justice system by wasting scarce judicial resources,” and 

went so far as to order that any “additional motions pursuant to 18 U.S.C. 

1 It is worth noting that the government’s motion for upward department and variance 

requested that Bennett be sentenced to not less than 360 months of imprisonment. In support 

of this request, the government argued Bennett’s criminal history category of II did not 

adequately address her criminal background and that Bennett continually put the children 

in her family—her teenage daughter, her two-year-old grandson, and her teenage niece—and 

the community at risk, such that the case was “outside the heartland” of most gun and 

obstruction of justice cases. On this point, the government maintains that Bennett drove 

drunk with her two-year old grandson in the car; bypassed the alcohol Breathalyzer installed 

in her car by having her daughter blow into it; involved her daughter and niece in 

transporting and hiding methamphetamine and evidence of robbery—including guns—

several times; allowed a known sex offender, with a proclivity for teenage girls, to live in her 

house in violation of sex offender requirements and without any regard for her daughter’s 

safety; and routinely sold drugs from the house in which her minor children lived. 

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§ 3582(c) [and] seeking relief under Amendment 782 . . . be docketed for 

administrative purposes only and immediately terminated.” 

Given the foregoing, even if we assume, without deciding, that the 

district court committed technical error when it referred to Bennett’s sentence 

as one “not based upon a sentencing range that was subsequently lowered by 

an amendment to the sentencing guidelines,” the error, if any, was harmless. 

As the district court has stated, no less than five times, it has determined a 

total sentence of 180 months’ imprisonment to be appropriate. Requiring the 

district court to do so a sixth time would simply waste judicial resources. 

Accordingly, the judgment of the district court is AFFIRMED.

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