                            NOT FOR PUBLICATION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.
