IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 17, 2008
No. 07-11183
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
GEORGE WHITEHEAD, JR.,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:07-CR-11
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
George Whitehead, Jr. was convicted by a jury of possession of more than
fifty grams of a mixture or substance containing a detectable amount of cocaine
base with intent to distribute and being a felon in possession of a firearm. He
appeals these convictions as well as the mandatory sentence of life imprisonment
imposed under 21 U.S.C. § 841(b)(1)(A).
Whitehead argues that the district court erred in its determination that
his confession was voluntary. He contends that law enforcement officers coerced
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-11183
his confession by threatening to arrest his wife if he did not provide information
regarding his offenses.
“While the ultimate determination of voluntariness is a question of law
reviewed de novo, this court must accept the factual conclusions underlying the
district court’s determination of voluntariness unless they are clearly erroneous.”
United States v. Garcia Abrego, 141 F.3d 142, 170 (5th Cir. 1998). “A confession
is voluntary if, under the totality of the circumstances, the statement is the
product of the accused’s free and rational choice.” Id. (citation and quotation
marks omitted).
The district court heard testimony from a law enforcement officer
regarding the events surrounding Whitehead’s arrest, and it also heard
Whitehead’s version of the events. Consistent with the testimony of the law
enforcement officer, the district court found that the officers had not threatened
to arrest Whitehead’s wife. The district court found that the officers attempted
to accommodate Whitehead by making sure that the children present in the
house would have proper care. The district court also found, based on
Whitehead’s demeanor and history, that Whitehead could not have been
persuaded to make a statement based on a promise that his wife would not be
arrested if he cooperated. These factual findings, which underlie the district
court’s ultimate determination that Whitehead’s confession was voluntary, are
not clearly erroneous. See Garcia Abrego, 141 F.3d at 170; United States v.
Shabazz, 993 F.2d 431, 438 (5th Cir. 1993). Whitehead has not shown that the
district court erred in determining that his confession was voluntary.
Whitehead also argues that the district court erred in enhancing his
sentence under 21 U.S.C. § 841(b)(1)(A) because his prior Texas convictions for
delivery of a controlled substance and possession with intent to deliver a
controlled substance are broader than the definition of a “controlled substance
offense” found in the federal statutes. This argument is foreclosed by United
States v. Sandle, 123 F.3d 810, 811-12 (5th Cir. 1997). “Although Sandle would
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have us look to the more restrictive definition of ‘controlled substance offense’
under section 4B1.2(2) of the Sentencing Guidelines, we have no need to utilize
the guidelines where the statute plainly mandates a more severe sentence.” Id.
at 812. Whitehead’s Texas convictions meet the definition of “felony drug
offense” as set forth in 21 U.S.C. § 802(44).
Whitehead’s contention that an offense involving the possession of a
controlled substance should not be used for enhancement under § 841 absent a
showing of intent to engage in the transfer or trafficking of drugs is likewise
foreclosed by Sandle. “Nothing in the statutory definition of ‘felony drug offense’
suggests that the term is limited to those possession offenses involving an
additional intent element.” Sandle, 123 F.3d at 812. Whitehead’s convictions
under Texas law for possession of cocaine were properly considered prior felony
drug offenses under the enhancement provision of 21 U.S.C. § 841(b)(1)(A).
AFFIRMED.
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