United States of America, Plaintiff-appellee, v. Lee Dennis Henry, Defendant-appellant, 989 F.2d 501 (6th Cir. 1993)

ORDER

Lee Dennis Henry appeals a sentence imposed following his conviction for manufacturing marijuana. He has also filed a motion for immediate release from custody. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Counsel for both parties have expressly waived oral argument, and all members of the panel agree that oral argument is not needed. See Fed. R. App. P. 34(a).

Henry pleaded guilty to one count of manufacturing marijuana in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (B). A search of his home and property in Hancock County, Tennessee, uncovered 151 live or recently cut marijuana plants and 148 dried stalks. A conviction involving more than 100 plants carries with it a mandatory minimum sentence of sixty months. 21 U.S.C. § 841(b) (1) (B).

Prior to sentencing, Henry filed a motion for a sentence below the range prescribed by the sentencing guidelines. The motion was based on health reasons. At the time of sentencing, Henry was HIV positive and suffered from AIDS related symptoms. The district court denied the motion and imposed the statutory minimum sentence of sixty months.

Upon review, we conclude that the district court did not err in concluding, under the circumstances present in this case, that it lacked discretion to depart downward from the minimum sentence mandated by statute. See United States v. Smith, 966 F.2d 1045, 1050 (6th Cir. 1992). The statute (21 U.S.C. § 841(b) (1) (B)) says that the defendant "shall be sentenced to a term of imprisonment which may not be less than 5 years," and the departure power does not trump the statutory mandate. Id.

Accordingly, the motion for release from custody is denied, and the district court's judgment is affirmed. See Rule 9(b) (3), Rules of the Sixth Circuit.