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

                                                 FILED
                                                                           August 24, 2009
                                     No. 08-40738
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

WILLIE JAMES POLLEY,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:95-CR-37-5


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       In 1995, a jury convicted Willie James Polley of conspiracy to distribute
cocaine base (crack cocaine) in violation of 21 U.S.C. § 846, and the district court
sentenced him to a statutory mandatory minimum 240-month term of
imprisonment to be followed by 10 years of supervised release. He appeals the
district court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a reduction of
sentence.      Polley based the motion on the United States Sentencing
Commission’s amendments to the Sentencing Guidelines’s base offense levels for

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40738

crack cocaine. We review the denial of a § 3582 motion for abuse of discretion.
United States v. Shaw, 30 F.3d 26, 28 (5th Cir. 1994).
      Polley argues that the district court abused its discretion in denying his
motion to reduce his sentence because the district court erroneously believed
that he was subject to the statutory mandatory minimum when he was actually
sentenced to a within-guidelines sentence based on the drug quantity attributed
to him. Polley further argues that if he was actually sentenced to the statutory
minimum, then the sentencing court erred in enhancing his sentence. The
Government has filed a motion for summary affirmance, or, alternatively, for an
extension of time within which to file a brief.
      Because Polley had a prior felony drug conviction and the Government
filed notice that it intended to seek enhancement pursuant to 21 U.S.C.
§ 851(a)(1), Polley was subject, by statute, to the mandatory minimum penalty
of 240 months in prison. 21 U.S.C. §§ 841(b)(1)(A), 851. The district court did
not have the discretion to impose a guidelines sentence that was lower than the
statutorily mandated minimum penalty. See United States v. Harper, 527 F.3d
396, 411 (5th Cir.), cert. denied, 129 S. Ct. 212 (2008); United States v.
Gomez-Herrera, 523 F.3d 554, 559 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008).
Accordingly, Polley has not shown that the district court abused its discretion
in denying his motion for a reduction of his sentence. See Shaw, 30 F.3d at 28.
      We decline to address Polley’s challenge to his sentence enhancement. As
we have previously stated, 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).
      The Government’s motion for summary affirmance is GRANTED, the
Government’s motion for an extension of time is DENIED as moot, and the
judgment of the district court is AFFIRMED.



                                        2
