                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 21 2012

                                                                       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. 09-10306

              Plaintiff - Appellee,              D.C. No. 2:08-cr-00322-RLH-
                                                 GWF-1
       v.

CHARLES KING,                                    MEMORANDUM *

              Defendant - Appellant.

                    Appeal from the United States District Court
                             for the District of Nevada
                     Roger L. Hunt, District Judge, Presiding

                           Submitted February 15, 2012 **
                             San Francisco, California

Before: THOMAS, FISHER and IKUTA, Circuit Judges.

      Defendant Charles King appeals his sentence on the bases that (1) the Fair

Sentencing Act of 2010 (FSA) and subsequent sentencing guideline amendments

retroactively apply to him and (2) his sentence was substantively unreasonable.




        *
        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).
      1. The FSA does not retroactively apply to King because he was sentenced

before the law was passed. See United States v. Baptist, 646 F.3d 1225, 1229 (9th

Cir. 2011) (per curiam). Thus, King remains subject to the 60-month mandatory

minimum sentence imposed by 21 U.S.C. § 841(b)(1)(B)(iii) at the time he was

sentenced. Although the post-FSA sentencing guideline amendments are

retroactive, they do not help King because he was sentenced based on a statutory

mandatory minimum, not the sentencing guidelines. See U.S. Sentencing

Guidelines Manual app. C, at 394 (offenders “sentenced at the statutory mandatory

minimum . . . cannot have their sentences lowered by an amendment to the

guidelines”).

      2. The district court did not abuse its discretion by imposing a substantively

unreasonable sentence when it sentenced King to the statutory mandatory

minimum. The court had no authority to depart below that sentence. See United

States v. Wipf, 620 F.3d 1168, 1170-71 (9th Cir. 2010). Although Congress later

enacted the FSA and the Commission amended the sentencing guidelines, that does

not make King’s sentence substantively unreasonable.

      AFFIRMED.




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