United States v. Cirilo-Munoz

582 F.3d 54, 2009 U.S. App. LEXIS 19999, 2009 WL 2838412

• Court: Court of Appeals for the First Circuit
• Decided: September 4, 2009
• Docket: 08-1830
• Status: Published

Opinions

PER CURIAM.

Upon remand from this court, see United States v. Cirilo-Muñoz, 504 F.3d 106 (1st Cir.2007), Ernesto Cirilo-Muñoz was resentenced to the statutory mandatory minimum sentence of 240 months. Cirilo-Muñoz once again appeals.

He asks, in conclusory fashion, that we declare the statutory mandatory minimum unconstitutional as applied to him, but he supplies no supporting argument. He did not present a constitutionally-based argument below so the claim is waived.

The argument that Cirilo-Muñoz did raise below and which he reiterates in somewhat fleeting fashion here is unavailing. Courts have uniformly rejected the claim that § 3553(a)’s “no greater than necessary” language authorizes a district court to sentence below the statutory minimum. See United States v. Samas, 561 F.3d 108, 110-111 (2d Cir.2009), petition for cert. filed, (U.S. Jun. 22, 2009) (No. 08-11058); United States v. Huskey, 502 F.3d 1196, 1200 (10th Cir.2007); United States v. Franklin, 499 F.3d 578, 585 (6th Cir.2007); United States v. Roberson, 474 F.3d 432, 436 (7th Cir.2007).

There being neither error of law nor abuse of discretion in the imposition of the statutory mandatory minimum sentence, the judgment of the district court entered on June 12, 2008 is affirmed.