Case: 12-10022 Document: 00511887118 Page: 1 Date Filed: 06/14/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 14, 2012
No. 12-10022
Summary Calendar Lyle W. Cayce
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-11-1
Before JONES, Chief Judge, and PRADO and ELROD, Circuit Judges.
PER CURIAM:*
George Whitehead, Jr., federal prisoner # 35653-177, is serving a term of
life imprisonment for his conviction of possession of more than 50 grams of a
mixture and substance containing a detectable amount of cocaine base with
intent to distribute. Concurrently, he is serving a 120-month sentence for his
conviction of being a felon in possession of a firearm. Whitehead appeals the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction of his
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-10022 Document: 00511887118 Page: 2 Date Filed: 06/14/2012
No. 12-10022
life sentence based on the retroactive amendments to U.S.S.G. § 2D1.1, the
guideline for crack cocaine offenses.
Section 3582(c)(2) permits the discretionary modification of a defendant’s
sentence “in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered
by the Sentencing Commission pursuant to 28 U.S.C. 994(o).” § 3582(c)(2); see
United States v. Doublin, 572 F.3d 235, 237 (5th Cir. 2009). The district court’s
decision whether to reduce a sentence under § 3582(c)(2) is reviewed for an
abuse of discretion, while the court’s interpretation of the Guidelines is reviewed
de novo. United States v. Evans, 587 F.3d 667, 672 (5th Cir. 2009).
Much of Whitehead’s brief amounts to an attack on his original sentence.
He asserts that he was entrapped into a higher sentence, and he contends that
the procedures required under 21 U.S.C. § 851 to increase his punishment by
reason of his prior convictions were not followed.
“A modification proceeding is not the forum for a collateral attack on a
sentence long since imposed and affirmed on direct appeal.” United States v.
Hernandez, 645 F.3d 709, 712 (5th Cir. 2011). A § 3582(c)(2) motion “is not a
second opportunity to present mitigating factors to the sentencing judge, nor is
it a challenge to the appropriateness of the original sentence.” United States v.
Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995). Accordingly, to the extent that
Whitehead challenges his original sentence, he cannot obtain relief under
§ 3582(c)(2).
As the district court determined, on account of his prior felony drug
convictions, Whitehead was subject to a mandatory sentence of life
imprisonment under 21 U.S.C. § 841(b)(1)(A). A mandatory minimum statutory
penalty overrides the retroactive application of a new guideline. See United
States v. Pardue, 36 F.3d 429, 431 (5th Cir. 1994). Because Whitehead’s
sentence of life imprisonment was statutorily mandated, he was not “sentenced
to a term of imprisonment based on a sentencing range that has subsequently
2
Case: 12-10022 Document: 00511887118 Page: 3 Date Filed: 06/14/2012
No. 12-10022
been lowered by the Sentencing Commission.” § 3582(c)(2); see Pardue, 36 F.3d
at 431.
AFFIRMED.
3