USA v. James Sandle, No. 10-20230 (5th Cir. 2010)

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Case: 10-20230 Document: 00511315526 Page: 1 Date Filed: 12/08/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 10-20230 Conference Calendar December 8, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JAMES SANDLE, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 4:94-CR-282-3 Before KING, BENAVIDES, and PRADO, Circuit Judges. PER CURIAM:* James Sandle, federal prisoner # 66616-079, appeals the district court s denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction of his sentence under the recent crack cocaine guidelines amendments. He argues that the district court abused its discretion in denying his § 3582(c)(2) motion; that the district court should have reduced his sentence based on the recent crack cocaine guidelines amendments; and that his statutory mandatory minimum sentence was improperly based on his prior conviction for simple possession. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-20230 Document: 00511315526 Page: 2 Date Filed: 12/08/2010 No. 10-20230 A district court s decision whether to reduce a sentence is reviewed for an abuse of discretion, and its interpretation of the Guidelines is reviewed de novo. United States v. Evans, 587 F.3d 667, 671-72 (5th Cir. 2009), cert. denied, 130 S. Ct. 3462 (2010). Because Sandle was subject to a statutory mandatory minimum sentence of 240 months of imprisonment under 21 U.S.C. § 841(b)(1)(A)(iii), the district court lacked authority to impose a sentence below the statutory minimum sentence. See United States v. Carter, 595 F.3d 575, 577, 579-81 (5th Cir. 2010); see also United States v. Robinson, 353 F. App x 941, 942 (5th Cir. 2009). Sandle s reliance on Spears v. United States, 129 S. Ct. 840 (2009), is misplaced as Spears did not involve a § 3582(c)(2) motion. See Spears, 129 S. Ct. at 841-45. Sandle s argument challenging his original sentencing may not be raised in a § 3582(c)(2) motion. 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). Therefore, this argument is not cognizable in a § 3582(c)(2) motion. See Evans, 587 F.3d at 674. AFFIRMED. 2

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