     Case: 12-10306     Document: 00512026478         Page: 1     Date Filed: 10/19/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 19, 2012
                                     No. 12-10306
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RODERICK GENE REED, also known as Rod,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:96-CR-68-2


Before BENAVIDES, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Roderick Gene Reed, federal prisoner # 46988-019, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion seeking modification of his life
sentence for conspiracy to distribute cocaine base and possession with the intent
to distribute 50 grams or more of cocaine and cocaine base. Reed argues that the
district court abused its discretion in denying his § 3582(c)(2) motion. He asserts
that Amendment 750 and the Fair Sentencing Act effectively raised the
threshold amount of crack cocaine necessary to trigger the statutorily mandated

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-10306    Document: 00512026478      Page: 2   Date Filed: 10/19/2012

                                   No. 12-10306

life sentence under 21 U.S.C. § 841 to 280 grams and that he was responsible for
only 240 grams of crack cocaine.
      A district court’s decision whether to reduce a sentence under § 3582(c)(2)
is reviewed for abuse of discretion. United States v. Evans, 587 F.3d 667, 672
(5th Cir. 2009).
      The district court correctly determined that Reed was subject to a
mandatory sentence of life imprisonment under 21 U.S.C. § 841(b)(1)(A) based
on his two prior felony drug convictions. 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 Reed’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 been lowered
by the Sentencing Commission.” § 3582(c)(2); see Pardue, 36 F.3d at 431.
Additionally, contrary to Reed’s assertion, the Fair Sentencing Act has no
applicability to him because he was sentenced before it took effect. See United
States v. Doggins, 633 F.3d 379, 384 (5th Cir. 2011).
      Reed also challenges his sentence on grounds that the district court lacked
jurisdiction to apply the enhancement and that he was denied the effective
assistance of counsel. “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 Reed challenges his original sentence, he cannot obtain relief under
§ 3582(c)(2).
      The judgment of the district court is AFFIRMED.




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