Take the Fifth: Jan. 21, 2021 opinions

Designated for publication

  • U.S. v. Whitehead, 19-11275, appeal from N.D. Tex.
    • Higginson, J. (Clement, Higginson, Engelhardt), criminal, First Step Act
    • Affirming district court’s denial of resentencing of defendant under the First Step Act, who had been sentenced originally in 2007 to a mandatory life sentence for possession with intent to distribute more than 50 grams of crack cocaine based on having at least two prior felony drug convictions.
    • The Court held that the defendant was eligible for resentencing under the First Step Act, because § 2 of the Fair Sentencing Act had raised the threshold for conviction under the statute pursuant to which defendant has been convicted, such that rather than a mandatory life sentence, defendant’s statutory sentencing range was 10 years to life and his guidelines range was 360 months to life. “Eligibility for resentencing under the First Step Act, however, does not equate to entitlement.” (Internal quotation marks and citation omitted).
    • The Court held that, though defendant was eligible for resentencing, the district court did not abuse its discretion in denying a reduced sentence to defendant. The Court held that the district court’s explanation was sufficient, relying on the seriousness of defendant’s conviction (which included possession of several firearms at the time of the arrest), the defendant’s extensive criminal history (which included several felony drug convictions, an assault conviction, and additional arrests for assault offenses and an attempted murder), and the defendant’s failure to accept responsibility.
    • “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.”


  • Crawford v. Child Protective Services, 19-20760, appeal from S.D. Tex.
    • per curiam (Higginbotham, Smith, Oldham), prisoner suit
    • Denying IFP status and dismissing appeal of dismissal of § 1983 action as meritless.
  • U.S. v. Nel, 19-51028, appeal from W.D. Tex.
    • per curiam (Haynes, Higginson, Oldham), criminal, restitution
    • Affirming restitution order of $448,170.14 after guilty plea to wire fraud.