United States v. Childress ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 10, 2009
No. 08-60684
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAMES MONROE CHILDRESS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:05-CR-81-1
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
James Monroe Childress, federal prisoner # 08696-043, challenges the
district court’s denial of his motion, pursuant to 18 U.S.C. § 3582(c)(2), to reduce
his sentence. Childress pleaded guilty in 2005 to knowingly and intentionally
possessing with the intent to distribute less than 500 grams of cocaine base. See
21 U.S.C. § 841(a)(1). The district court sentenced him to a term of
imprisonment of 120 months, the statutory minimum term. See § 841(b)(1)(A).
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-60684
Childress seeks a reduction in this sentence based on the retroactive Sentencing
Guidelines amendments, which lowered the offense levels, and therefore the
penalties, for crack cocaine offenses. See U.S.S.G. Supp. to App. C, Amends. 706,
713 (2008); United States v. Burns, 526 F.3d 852, 861 (5th Cir. 2008).
As Childress concedes, the district court lacked authority to impose a
sentence below the statutory minimum sentence unless the Government moved
for a sentence reduction based on the defendant’s substantial assistance or
Childress qualified for a safety-valve sentence reduction. 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). Childress makes no argument that he meets either of the limited
circumstances for a sentence below the statutory minimum. See Harper, 527
F.3d at 411. Accordingly, the decision of the district court is AFFIRMED.
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