FILED
NOT FOR PUBLICATION MAR 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30081
Plaintiff - Appellee, D.C. No. 6:09-cr-00015-CCL
v.
MEMORANDUM *
RAYNE WOLERY,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, District Judge, Presiding
Submitted March 8, 2011 **
Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.
Rayne Wolery appeals from the 180-month sentence imposed following his
guilty-plea conviction for attempted sexual exploitation of children, in violation of
18 U.S.C. § 2251(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Wolery contends that the district court erred by failing to recognize its
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
authority to depart downward from the 15-year mandatory minimum sentence
called for by the statute. This contention lacks merit. In the absence of a motion
from the government, the district court did not have discretion to depart downward
from the mandatory minimum. See United States v. Valente, 961 F.2d 133, 134-35
(9th Cir. 1992); see also United States v. Quach, 302 F.3d 1096, 1103 n.3 (9th Cir.
2002).
Wolery also contends that the mandatory minimum sentence violates the
Eighth Amendment prohibition against cruel and unusual punishment. This
contention also lacks merit. See United States v. Meiners, 485 F.3d 1211, 1212-13
(9th Cir. 2007) (per curiam).
AFFIRMED.
2 10-30081