United States v. Bobby Ferrel ( 2020 )

Case: 20-20180 Document: 00515638156 Page: 1 Date Filed: 11/13/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 13, 2020
No. 20-20180 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
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 Davis, Stewart, and Dennis, 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
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-20180 Document: 00515638156 Page: 2 Date Filed: 11/13/2020
No. 20-20180
Section 5K1.1 of the United States Sentencing Guidelines and imposed a
sentence of 180 months in prison. Ferrel appeals his fifth attempt at having
his sentence reduced under 18 U.S.C. § 3582(c)(2) based upon Amendment
782 to the Sentencing Guidelines. He contends that the term “applicable
guideline range” is sufficiently ambiguous that the rule of lenity should be
applied to it.
We review the district court’s disposition 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 that is 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 guidelines range based on offense level and criminal history
category); § 1B1.10(a)(2)(B); § 1B1.10 comment. n.1(A).
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 guidelines range as his original sentencing: the statutory
maximum of 240 months. See § 1B1.10(a)(2)(B); § 1B1.10, comment.
(n.1(A); United States v. Carter, 595 F.3d 575, 580-81 (5th Cir. 2010). The
district court thus did not abuse its discretion in denying his § 3582(c)(2)
motion. See Evans, 587 F.3d at 672. Accordingly, the judgment of the district
court is AFFIRMED. Ferrel’s motion for appointment of counsel is
DENIED.
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