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   opinion should not be published and is not precedent except under the limited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, 

, 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, 

, 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, 

, 580-81 (5th Cir. 2010). The
   district court thus did not abuse its discretion in denying his § 3582(c)(2)
   motion. See 

. Accordingly, the judgment of the district
   court is AFFIRMED. Ferrel’s motion for appointment of counsel is
   DENIED.




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