                                                                             FILED
                            NOT FOR PUBLICATION                               MAR 15 2011

                                                                         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. 10-30081

               Plaintiff - Appellee,              D.C. No. 6:09-cr-00015-CCL

  v.
                                                  MEMORANDUM *
RAYNE WOLERY,

               Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                    Charles C. Lovell, District Judge, Presiding

                              Submitted March 8, 2011 **

Before:        FARRIS, LEAVY, and BYBEE, Circuit Judges.

       Rayne Wolery appeals from the 180-month sentence imposed following his

guilty-plea conviction for attempted sexual exploitation of children, in violation of

18 U.S.C. § 2251(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

       Wolery contends that the district court erred by failing to recognize its

          *
             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).
authority to depart downward from the 15-year mandatory minimum sentence

called for by the statute. This contention lacks merit. In the absence of a motion

from the government, the district court did not have discretion to depart downward

from the mandatory minimum. See United States v. Valente, 961 F.2d 133, 134-35

(9th Cir. 1992); see also United States v. Quach, 302 F.3d 1096, 1103 n.3 (9th Cir.

2002).

         Wolery also contends that the mandatory minimum sentence violates the

Eighth Amendment prohibition against cruel and unusual punishment. This

contention also lacks merit. See United States v. Meiners, 485 F.3d 1211, 1212-13

(9th Cir. 2007) (per curiam).

         AFFIRMED.




                                          2                                   10-30081
