United States v. Andrew Gomez

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-30008

Plaintiff-Appellee, D.C. No. 4:20-cr-00006-BMM-1

v.

ANDREW MICHAEL GOMEZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Brian Morris, District Judge, Presiding

Submitted September 14, 2021**

Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.

Andrew Michael Gomez appeals from the district court’s judgment and

challenges the 120-month mandatory minimum sentence imposed following his

guilty-plea conviction for conspiracy to possess with intent to distribute

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846. We

* 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). have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Gomez contends that his mandatory minimum sentence is substantively

unreasonable because it is greater than necessary and conflicts with 18 U.S.C.

§ 3553(a). As he concedes, this contention is foreclosed. See United States v.

Wipf, 620 F.3d 1168, 1170-71 (9th Cir. 2010) (§ 3553(a) does not authorize a

district court to impose a sentence below the mandatory statutory minimum).

Because Gomez has not shown that Wipf is “clearly irreconcilable” with

intervening higher authority, we are bound to follow it. See Miller v. Gammie, 335

F.3d 889, 900 (9th Cir. 2003) (en banc).

AFFIRMED.

2 21-30008