                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 29 2010

                                                                        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. 09-30388

               Plaintiff - Appellee,             D.C. No. 9:09-cr-00023-DWM

  v.
                                                 MEMORANDUM *
MICHAEL ANTHONY PETERS,

               Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                            Submitted October 19, 2010 **

Before:        O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.

       Michael Anthony Peters appeals from his 120-month mandatory minimum

sentence imposed following his guilty-plea conviction for conspiracy to possess

with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(b)(1)(B) and 846.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

          *
             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).
      Peters contends that his mandatory minimum sentence is substantively

unreasonable because it is greater than necessary under 18 U.S.C. § 3553(a).

Peters’s contention is foreclosed. United States v. Wipf, No. 09-50291, 2010 WL

3398258, at *2 (9th Cir. 2010) (Section 3553 does not authorize a court to impose

a sentence below the mandatory statutory minimum.).

      AFFIRMED.




                                         2                                     09-30388
