United States v. Alex Medrano

714 F. App'x 765

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 9, 2018
• Docket: 15-50272, 16-50192, 16-50341, 17-50249
• Status: Unpublished

Opinion

MEMORANDUM **

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 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, 111 S.Ct. 2680, 115 L.Ed.2d 836 (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, 103 S.Ct. 3001, 77 L.Ed.2d 637 (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, 120 S.Ct. 1795, 146 L.Ed.2d 727 (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).

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3,