USA v. Childress

Filing 920090810

Opinion

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
No. 08-60684 Summary Calendar August 10, 2009 Charles R. Fulbruge III Clerk

UNITED STATES OF AMERICA, Plaintiff-Appellee v. JAMES MONROE CHILDRESS, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:05-CR-81-1

Before JOLLY, WIENER, and ELROD, Circuit Judges. PER CURIAM:* James Monroe Childress, federal prisoner # 08696-043, challenges the district court's denial of his motion, pursuant to 18 U.S.C. § 3582(c)(2), to reduce his sentence. Childress pleaded guilty in 2005 to knowingly and intentionally possessing with the intent to distribute less than 500 grams of cocaine base. See 21 U.S.C. § 841(a)(1). The district court sentenced him to a term of

imprisonment of 120 months, the statutory minimum term. See § 841(b)(1)(A).

Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR. R. 47.5.4.

*

No. 08-60684 Childress seeks a reduction in this sentence based on the retroactive Sentencing Guidelines amendments, which lowered the offense levels, and therefore the penalties, for crack cocaine offenses. See U.S.S.G. Supp. to App. C, Amends. 706, 713 (2008); United States v. Burns, 526 F.3d 852, 861 (5th Cir. 2008). As Childress concedes, the district court lacked authority to impose a sentence below the statutory minimum sentence unless the Government moved for a sentence reduction based on the defendant's substantial assistance or Childress qualified for a safety-valve sentence reduction. See United States v. Harper, 527 F.3d 396, 411 (5th Cir.), cert. denied, 129 S. Ct. 212 (2008); United States v. Gomez-Herrera, 523 F.3d 554, 559 (5th Cir.), cert. denied, 129 S. Ct. 624 (2008). Childress makes no argument that he meets either of the limited

circumstances for a sentence below the statutory minimum. See Harper, 527 F.3d at 411. Accordingly, the decision of the district court is AFFIRMED.

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