     Case: 10-20230 Document: 00511315526 Page: 1 Date Filed: 12/08/2010




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

                                                 FILED
                                                                          December 8, 2010
                                     No. 10-20230
                                  Conference Calendar                       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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.




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