[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-11509 Dec. 04, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 08-00402-CR-T-17-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FERNANDO ANASTASIO PALACIOS-BONILLA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 4, 2009)
Before BLACK, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Fernando Anastasio Palacios-Bonilla appeals his 240-month concurrent
sentences imposed for (1) conspiring to possess with intent to distribute 5
kilograms or more of cocaine while aboard a vessel subject to the jurisdiction of
the United States, in violation of 46 U.S.C. §§ 70503(a), 70506(a), (b), and 21
U.S.C. § 960(b)(1)(B)(ii), and (2) possession with intent to distribute 5 kilograms
or more of cocaine while aboard a vessel subject to the jurisdiction of the United
States, in violation of 46 U.S.C. §§ 70503(a), 70506(a), and 21 U.S.C.
§ 960(b)(1)(B)(ii). Palacios-Bonilla argues that his sentence was unreasonable
under the 18 U.S.C. § 3553(a) factors because of his history and individual
characteristics, and the nature and circumstances of the offense, and because his
sentence “exceeds the top of the guidelines.” After thorough review, we affirm.
We review de novo the legality of a criminal sentence. United States v.
Mazarky, 499 F.3d 1246, 1248 (11th Cir. 2007). Section 5G1.1(c)(2) of the
sentencing guidelines provides that the sentence imposed may be within the
applicable guideline range, “provided that the sentence . . . is not less than any
statutorily required minimum sentence.” U.S.S.G. § 5G1.1(c)(2). Normally, the
sentencing guideline range for an individual with a criminal history category of II
and a total offense level of 35 who, unlike Palacios-Bonilla, had no prior felony
drug conviction, would be 188 to 235 months. U.S.S.G. § 5A. However, 21
U.S.C. § 960(b)(1)(B)(ii) mandates that an individual, like Palacios-Bonilla, who
has a prior felony drug offense conviction and subsequently conspired to possess
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or did possess 5 or more kilograms of cocaine while on board a vessel, “shall be
sentenced to a term of imprisonment of not less than 20 years.”
“It is well-settled that a district court is not authorized to sentence a
defendant below the statutory minimum unless the government filed a substantial
assistance motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 or the
defendant falls within the safety-valve of 18 U.S.C. § 3553(f).” United States v.
Castaing-Sosa, 530 F.3d 1358, 1360-61 (11th Cir. 2008). Even after the remedial
holding of United States v. Booker, 543 U.S. 220 (2005), the district court remains
bound by statutes designating mandatory minimum sentences. Castaing-Sosa, 530
F.3d at 1362. Booker’s instruction to the district courts to consider the § 3553(a)
factors in fashioning a reasonable sentence cannot be read to authorize the use of
those factors to impose a sentence below an applicable statutory mandatory
minimum. Id.
We find no merit in Palacios-Bonilla’s argument. The district court properly
concluded that Palacios-Bonilla was subject to a mandatory minimum sentence due
to his prior felony drug convictions and sentenced him to the mandatory minimum
term. Moreover, Palacios-Bonilla did not argue that he was entitled to the safety
valve and the government did not file a substantial assistance motion. Therefore,
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the district court correctly concluded that it was bound to sentence Palacios-Bonilla
to the mandatory minimum of 240 months’ imprisonment. See id. at 1360-61.
AFFIRMED.
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