                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 09 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        Nos. 15-50272
                                                      16-50192
              Plaintiff-Appellant,                    16-50341
                                                      17-50249
 v.
                                                 D.C. No. 2:14-cr-00556-R-1
ALEX ROMERO MEDRANO, AKA
Dreamer,
                                                 MEMORANDUM*
              Defendant-Appellee.


                   Appeals from the United States District Court
                      for the Central District of California
                    Manuel L. Real, District Judge, Presiding

                            Submitted March 7, 2018**
                               Pasadena, California

Before: REINHARDT, TASHIMA, and NGUYEN, Circuit Judges.

      1. “[A] statutory minimum sentence is mandatory.” United States v. Sykes, 658

F.3d 1140, 1146 (9th Cir. 2011). A district court does not have authority under 18

U.S.C. § 3553(a) to impose a sentence below the statutory minimum. United States

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
v. Wipf, 620 F.3d 1168, 1171 (9th Cir. 2010). The district court erred by unlawfully

sentencing Appellee Alex Medrano to a probationary sentence below the mandatory

minimum as required by 21 U.S.C. § 841(b)(1)(B).

      2. Medrano argues that a five-year sentence violates the Eighth Amendment.

Our precedent forecloses this challenge. See, e.g., Harmelin v. Michigan, 501 U.S.

957, 1001 (1991) (Kennedy, J., concurring in part and concurring in the judgment)

(“The Eighth Amendment . . . forbids only extreme sentences that are ‘grossly

disproportionate’ to the crime.” (quoting Solem v. Helm, 463 U.S. 277, 288

(1983)); United States v. Jensen, 425 F.3d 698, 708 (9th Cir. 2005) (holding

imposition of a life sentence for a first-time conviction for drug possession does

not violate the Eighth Amendment).

      3. Because the district court’s initial probationary sentence was unlawful, we

must vacate the subsequent sentences following revocation, which are “part of the

penalty for the initial offense.” Johnson v. United States, 529 U.S. 694, 700 (2000).

      We therefore VACATE the sentences in each of these consolidated appeals

and REMAND for resentencing on the offense of conviction in accordance with

the mandatory minimum required by 21 U.S.C. § 841(b)(1)(B).




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