United States v. Carvajal

MEMORANDUM ** Luis Carvajal appeals from his 120-month sentence imposed after pleading guilty to conspiracy and possession with intent to distribute and distribution of cocaine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841 (a)(1), (b)(1)(A), and 846. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm. Carvajal contends that, now that the United States Sentencing Guidelines are no longer mandatory, see United States v. Booker, 543 U.S. 220 , 125 S.Ct. 738 , 160 L.Ed.2d 621 (2005), the district court has the discretion to adjust his criminal history category so that he meets the safety valve provisions and can be sentenced under the mandatory minimum. This contention fails because Booker does not bear on the reduction of sentences. See Booker, 543 U.S. at 244 , 125 S.Ct. 738 . Also, the safety valve adjustment, which is governed by statute, prohibits a downward adjustment if the defendant has more than one criminal history point. See 18 U.S.C. § 3553 (f)(1); see also United States v. Valencia-Andrade, 72 F.3d 770, 773-74 (9th *625 Cir.1995) (stating that 18 U.S.C. § 8558 (f) precludes the district court from creating an exception to a mandatory minimum sentence for an over-represented criminal history category). Carvajal also contends that he is entitled to a remand pursuant to United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc), because it is clear that the district court would have sentenced him differently. This contention is foreclosed by United States v. Dare, 425 F.3d 634, 643 (9th Cir.2005), because Carvajal was sentenced to the statutory mandatory minimum sentence. AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.