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Date: 09-21-2021
Case Style:
United States of America v. George Whitehead, Jr.,
Case Number: 19-11275
Judge: Stephen A. Higginson
Court: United States Court of Appeals
for the Fifth Circuit
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
New Orleans, LA - Criminal defense lawyer represented defendant with a possession with intent to distribute more than 50 grams of a mixture and substance containing a detectable amount of cocaine base charge.
George Whitehead, Jr., federal prisoner # 35653-177, is serving life in
prison. His sentence was imposed in November 2007 based on his jury-trial
conviction of possession with intent to distribute more than 50 grams of a
mixture and substance containing a detectable amount of cocaine base—
better known as crack cocaine. The life sentence was mandatory under 21
U.S.C. § 841(b)(1)(A) because Whitehead had at least two prior felony drug
convictions. Whitehead appeals the district court’s denial of his motion for a
United States Court of Appeals
Fifth Circuit
FILED
January 21, 2021
Lyle W. Cayce
Clerk
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No. 19-11275
2
sentence reduction pursuant to the First Step Act. See First Step Act of 2018
(“FSA”), Pub. L. No. 115-391, 132 Stat. 5194 (2018).
We previously remanded this matter to the district court—once for
the court to give Whitehead’s motion further consideration, and a second
time for the court to explain its reasons for denying it. The district court
determined on limited remand that Whitehead was not eligible for a sentence
reduction and that, even if he were eligible, the court would not reduce his
sentence. Whitehead challenges both determinations.
Whitehead argues that he is eligible for a sentence reduction because
his indictment charged him with possession with intent to distribute more
than 50 grams of crack cocaine. He is right. Section 404 of the FSA gives
district courts the discretion to apply the Fair Sentencing Act of 2010 to
reduce a prisoner’s sentence for a “covered offense.” United States v.
Jackson, 945 F.3d 315, 319 (5th Cir. 2019). A “covered offense” is “a
violation of a Federal criminal statute, the statutory penalties for which were
modified by section 2 or 3 of the Fair Sentencing Act of 2010, that was
committed before August 3, 2010.” FSA § 404(a) (citation omitted).
Whether a defendant has a “covered offense” turns on the statute under
which he was convicted, rather than facts specific to the defendant’s
violation. Jackson, 945 F.3d at 319–20. Thus, if a defendant was “convicted
of violating a statute whose penalties were modified by the Fair Sentencing
Act, then he meets that aspect of a ‘covered offense.’” Id.
That is the case here. Section 2 of the Fair Sentencing Act amended
Whitehead’s statute of conviction, 21 U.S.C. § 841(b)(1)(A), by increasing
the 50-gram threshold of cocaine base to 280 grams, and similarly amended
§ 841(b)(1)(B) by increasing the threshold quantity from five to 28 grams of
cocaine base. These amendments reduced the applicable penalties for
amounts above the old thresholds but below the new ones: Whitehead’s new
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No. 19-11275
3
statutory range would be imprisonment of 10 years to life, and his new
Guidelines range would be 360 months to life. Because Whitehead
committed his § 841(b)(1)(A) offense in September 2005, and the statutory
penalties for that offense were modified by the Fair Sentencing Act of 2010,
Whitehead’s offense is a “covered” one. See id. at 318–20. That makes him
eligible for a reduction in sentence under the FSA.
1
“Eligibility for resentencing under the First Step Act,” however,
“does not equate to entitlement.” United States v. Batiste, No. 19-30927,
2020 U.S. App. LEXIS 35899, at *8 (5th Cir. Nov. 13, 2020). The district
court has broad discretion in deciding whether to resentence. Jackson, 945
F.3d at 321. We review only for abuse of that discretion.2 Id. at 319 & n.2.
Whitehead raises three arguments on this front. First, he contends
that the district court disregarded our mandate by denying a sentence
reduction. Not so. We did not mandate that Whitehead’s motion for a
1 The district court reached a contrary conclusion—without citation to our FSA
(or any other) precedent and despite the Government’s concession that Whitehead is
eligible for a sentence reduction—by looking to Whitehead’s presentence investigation
report (“PSR”). The PSR indicated that Whitehead was responsible for more than 280
grams of cocaine base considering the value of the drug money seized from his possession.
That amount of cocaine base, for a repeat felon like Whitehead, would still trigger a
mandatory life sentence under the post-Fair Sentencing Act version of § 841(b)(1)(A)
(2011) applicable here. This apparent inevitability, the district court thought, precluded
Whitehead’s eligibility.
Our precedent says otherwise. We have rejected the practice of gleaning additional
grams from the PSR to pull an offense outside the scope of the FSA. See Jackson, 945 F.3d
at 319 (“That approach doesn’t comport with the ordinary meaning of the statute . . . .”).
Rather, “whether an offense is ‘covered’ depends only on the statute under which the
defendant was convicted.” Id. at 320. Whitehead was convicted of violating a statute whose
penalties were modified by the FSA; and so, he has a covered offense. Id.
2 “A court abuses its discretion when the court makes an error of law or bases its
decision on a clearly erroneous assessment of the evidence.” United States v. Larry, 632
F.3d 933, 936 (5th Cir. 2011) (internal quotation marks omitted).
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No. 19-11275
4
sentence reduction be granted—only that the district court consider
Whitehead’s motion and explain its reasons for denying it.
Next, turning to those reasons, Whitehead argues that the district
court’s explanation was inadequate and neglected to address the 18 U.S.C.
§ 3553(a) sentencing factors. On second remand, the district court
articulated its reasons for denying Whitehead’s motion for a sentence
reduction. The court emphasized the nature and seriousness of Whitehead’s
offenses: he was a crack-cocaine dealer who possessed several firearms at the
time the search warrant of his home was executed. The court also recounted
Whitehead’s extensive criminal history (Category V), which—in addition to
his prior felony drug convictions—included one assault conviction, several
arrests for assault offenses, and an arrest for attempted murder.3 Finally, the
district court correctly noted that Whitehead did not accept responsibility
and that, at least in the district court’s estimation, he testified falsely at his
sentencing.
The district court’s explanation, albeit succinct, was enough. “[T]he
FSA doesn’t contemplate a plenary resentencing.” Id. at 321. “Instead, the
court ‘plac[es] itself in the time frame of the original sentencing, altering the
relevant legal landscape only by the changes mandated by the 2010 Fair
Sentencing Act.’” Id. (quoting United States v. Hegwood, 934 F.3d 414, 418
(5th Cir. 2019)). Here, the district court “relied on [Whitehead’s] extensive
3 Generally, a district court may not consider a defendant’s “bare arrest record”
at an initial sentencing. See United States v. Foley, 946 F.3d 681, 686 (5th Cir. 2020)(internal
quotation marks omitted). However, an arrest record is not bare when it is accompanied by
“a factual recitation of the defendant’s conduct that gave rise to a prior unadjudicated
arrest” and “that factual recitation has an adequate evidentiary basis with sufficient indicia
of reliability.” United States v. Windless, 719 F.3d 415, 420 (5th Cir. 2013). Here, the PSR
includes details about the facts underlying Whitehead’s arrests, based on police reports.
The district court therefore was not dealing with a “bare arrest record,” and Whitehead
has not asserted that the court erred in considering his arrest history.
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No. 19-11275
5
criminal history” and considered other relevant § 3553(a) factors in reaching
its determination.
4 Id. Our summation in Jackson applies equally to
Whitehead: “He filed a detailed motion explaining why he should get a new
sentence; the government responded; the court denied the motion; and, on
limited remand, it explained why.” 945 F.3d at 322. Nothing more was
required.
Finally, Whitehead faults the district court’s failure to appreciate his
post-sentencing growth. He claims that he is no longer a drug dealer, that he
has found God, that he accepts responsibility for his actions, and that he now
respects the law. Whitehead also invokes his good prison disciplinary record,
his completion of BOP programs, and his educational achievements while in
prison. As admirable as that apparent progress may be, however, we have
held that the district court was not required to consider it. See id. at 321–22
& n.7.
Outcome: Whitehead has not shown that the district court abused its discretion
in denying his motion for a sentence reduction. Accordingly, the judgment of
the district court is AFFIRMED.
Plaintiff's Experts:
Defendant's Experts:
Comments: