United States v. Bobby Ferrel ( 2019 )

Case: 18-20721 Document: 00514959416 Page: 1 Date Filed: 05/16/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 18-20721
Fifth Circuit
FILED
Summary Calendar May 16, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
BOBBY LEE FERREL,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CR-386-1
Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Bobby Lee Ferrel, federal prisoner # 72048-279, pleaded guilty to a single
count of conspiracy to commit a drug trafficking offense while in possession of
a firearm in violation of 18 U.S.C. § 924(o). The district court granted the
Government’s motion for a downward departure pursuant to Section 5K1.1 of
the United States Sentencing Guidelines and imposed a sentence of 180
months in prison. Ferrel then moved for a reduction in sentence under 18
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20721
U.S.C. § 3582(c)(2), which the district court denied. Ferrel appeals the denial
of his § 3582(c)(2) motion.
We review the denial of a § 3582(c)(2) motion for an abuse of discretion.
United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009). In evaluating a
request for a sentence reduction, the district court first must determine
whether the defendant is eligible for a reduction under U.S.S.G. § 1B1.10.
Dillon v. United States, 560 U.S. 817, 826 (2010). Section 1B1.10 authorizes a
reduction if a defendant is serving a term of imprisonment and the sentencing
range applicable to him is lowered by an amendment to the guidelines listed
in § 1B1.10(d). § 1B1.10(a)(1). A reduction is not authorized if an amendment
does not reduce a defendant’s “applicable guideline range,” meaning the range
prescribed by U.S.S.G. § 1B1.1(a), before any departures or variances. See
§ 1B1.1(a) (describing method for calculating guideline range based on offense
level and criminal history category); § 1B1.10(a)(2)(B); § 1B1.10 cmt. n.1(A).
In his § 3582(c)(2) motion, Ferrel argued that he was eligible for relief
under Amendment 782. The record reflects that the application of Amendment
782 would reduce Ferrel’s total offense level from 39 to 37 but still subject him
to the same advisory guideline range as his original sentencing: the statutory
maximum of 240 months. Ferrel suggests that we should take into account the
district court’s downward departure pursuant to § 5K1.1. But a defendant’s
eligibility for relief under § 1B1.10 (and thus, under § 3582(c)(2)) is determined
without considering the effect of a departure. See § 1B1.10 cmt. n.1(A).
Otherwise put, the district court’s downward departure based on the
Government’s § 5K1.1 motion did not reduce Ferrel’s offense level or his
guideline range then, and it does not affect the applicable guideline range for
purposes of our § 3582(c)(2) eligibility analysis now. Therefore, because
Amendment 782 did not reduce Ferrel’s applicable guideline range, he was
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ineligible for a sentence reduction. See § 1B1.10(a)(2)(B); § 1B1.10 cmt. n.1(A);
United States v. Bowman, 632 F.3d 906, 910-11 (5th Cir. 2011).
Ferrel nonetheless argues that the district court should have determined
whether he was entitled to a reduction based on the 18 U.S.C. § 3553(a) factors,
assessed whether he presented a danger to the community, and considered his
post-sentencing behavior. But because he was ineligible for a reduction, the
district court was not required to review these matters before denying his
§ 3582(c)(2) motion. See Dillon, 560 U.S. at 826-27. To the extent Ferrel
argues that the district court did not adequately explain its denial, his claim is
unavailing because a court is “‘not required to state findings of facts and
conclusions of law’ when denying a § 3582(c)(2) motion.” Evans, 587 F.3d at
674 (quoting United States v. Cox, 317 F. App’x 401, 403 (5th Cir. 2009)).
Ferrel has failed to establish that the district court abused its discretion
by denying his § 3582(c)(2) motion. Thus, the judgment of the district court is
AFFIRMED.
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