United States v. Charles King , 468 F. App'x 743 ( 2012 )

FILED
NOT FOR PUBLICATION FEB 21 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10306
Plaintiff - Appellee, D.C. No. 2:08-cr-00322-RLH-
GWF-1
v.
CHARLES KING, MEMORANDUM *
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Submitted February 15, 2012 **
San Francisco, California
Before: THOMAS, FISHER and IKUTA, Circuit Judges.
Defendant Charles King appeals his sentence on the bases that (1) the Fair
Sentencing Act of 2010 (FSA) and subsequent sentencing guideline amendments
retroactively apply to him and (2) his sentence was substantively unreasonable.
*
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).
1. The FSA does not retroactively apply to King because he was sentenced
before the law was passed. See United States v. Baptist, 646 F.3d 1225, 1229 (9th
Cir. 2011) (per curiam). Thus, King remains subject to the 60-month mandatory
minimum sentence imposed by 21 U.S.C. § 841(b)(1)(B)(iii) at the time he was
sentenced. Although the post-FSA sentencing guideline amendments are
retroactive, they do not help King because he was sentenced based on a statutory
mandatory minimum, not the sentencing guidelines. See U.S. Sentencing
Guidelines Manual app. C, at 394 (offenders “sentenced at the statutory mandatory
minimum . . . cannot have their sentences lowered by an amendment to the
guidelines”).
2. The district court did not abuse its discretion by imposing a substantively
unreasonable sentence when it sentenced King to the statutory mandatory
minimum. The court had no authority to depart below that sentence. See United
States v. Wipf, 620 F.3d 1168, 1170-71 (9th Cir. 2010). Although Congress later
enacted the FSA and the Commission amended the sentencing guidelines, that does
not make King’s sentence substantively unreasonable.
AFFIRMED.
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