United States v. Jermaine McClelland , 574 F. App'x 761 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 21 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-50082
Plaintiff - Appellant, D.C. No. 2:12-cr-00872-R-1
v.
MEMORANDUM*
JERMAINE EARL MCCLELLAND,
AKA Baby Mont, AKA Monty,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted May 15, 2014**
Pasadena, California
Before: KOZINSKI, Chief Judge, WARDLAW and FISHER, Circuit
Judges.
The district court lacked authority to impose a sentence below the mandatory
minimum. See United States v. Wipf, 620 F.3d 1168, 1170–71 (9th Cir. 2010).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
page 2
Because McClelland had three criminal history points, he was ineligible for safety
valve relief. See 18 U.S.C. § 3553(f). Whether the district court believed that
McClelland’s criminal history category substantially over-represented the
seriousness of his criminal history is irrelevant because “district courts have no
authority to adjust criminal history points for the purpose of determining eligibility
for safety valve relief under 18 U.S.C. § 3553(f)(1).” United States v. Hernandez-
Castro, 473 F.3d 1004, 1008 (9th Cir. 2007). We therefore vacate the sentence and
remand for resentencing.
VACATED AND REMANDED.