                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 09-11509                   Dec. 04, 2009
                            Non-Argument Calendar            THOMAS K. KAHN
                          ________________________               CLERK


                   D. C. Docket No. 08-00402-CR-T-17-EAJ

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

FERNANDO ANASTASIO PALACIOS-BONILLA,

                                                           Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                              (December 4, 2009)

Before BLACK, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

      Fernando Anastasio Palacios-Bonilla appeals his 240-month concurrent

sentences imposed for (1) conspiring to possess with intent to distribute 5

kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of
the United States, in violation of 46 U.S.C. §§ 70503(a), 70506(a), (b), and 21

U.S.C. § 960(b)(1)(B)(ii), and (2) possession with intent to distribute 5 kilograms

or more of cocaine while aboard a vessel subject to the jurisdiction of the United

States, in violation of 46 U.S.C. §§ 70503(a), 70506(a), and 21 U.S.C.

§ 960(b)(1)(B)(ii).   Palacios-Bonilla argues that his sentence was unreasonable

under the 18 U.S.C. § 3553(a) factors because of his history and individual

characteristics, and the nature and circumstances of the offense, and because his

sentence “exceeds the top of the guidelines.” After thorough review, we affirm.

      We review de novo the legality of a criminal sentence. United States v.

Mazarky, 499 F.3d 1246, 1248 (11th Cir. 2007).         Section 5G1.1(c)(2) of the

sentencing guidelines provides that the sentence imposed may be within the

applicable guideline range, “provided that the sentence . . . is not less than any

statutorily required minimum sentence.” U.S.S.G. § 5G1.1(c)(2).      Normally, the

sentencing guideline range for an individual with a criminal history category of II

and a total offense level of 35 who, unlike Palacios-Bonilla, had no prior felony

drug conviction, would be 188 to 235 months.       U.S.S.G. § 5A. However, 21

U.S.C. § 960(b)(1)(B)(ii) mandates that an individual, like Palacios-Bonilla, who

has a prior felony drug offense conviction and subsequently conspired to possess




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or did possess 5 or more kilograms of cocaine while on board a vessel, “shall be

sentenced to a term of imprisonment of not less than 20 years.”

      “It is well-settled that a district court is not authorized to sentence a

defendant below the statutory minimum unless the government filed a substantial

assistance motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 or the

defendant falls within the safety-valve of 18 U.S.C. § 3553(f).” United States v.

Castaing-Sosa, 530 F.3d 1358, 1360-61 (11th Cir. 2008). Even after the remedial

holding of United States v. Booker, 543 U.S. 220 (2005), the district court remains

bound by statutes designating mandatory minimum sentences. Castaing-Sosa, 530

F.3d at 1362. Booker’s instruction to the district courts to consider the § 3553(a)

factors in fashioning a reasonable sentence cannot be read to authorize the use of

those factors to impose a sentence below an applicable statutory mandatory

minimum. Id.

      We find no merit in Palacios-Bonilla’s argument. The district court properly

concluded that Palacios-Bonilla was subject to a mandatory minimum sentence due

to his prior felony drug convictions and sentenced him to the mandatory minimum

term. Moreover, Palacios-Bonilla did not argue that he was entitled to the safety

valve and the government did not file a substantial assistance motion. Therefore,




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the district court correctly concluded that it was bound to sentence Palacios-Bonilla

to the mandatory minimum of 240 months’ imprisonment. See id. at 1360-61.

      AFFIRMED.




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