UNITED STATES of America, Appellee, v. Freddy JIMENEZ, a.k.a. Gaguito, a.k.a. Gago, Defendant, Odaris Jimenez, a.k.a. Baron, Defendant-Appellant, 394 F. App'x 806

SUMMARY ORDER On November 24, 2008, a federal grand jury returned an indictment charging Odaris Jimenez (“defendant” or “Jimenez”) in Count One with conspiracy to possess with intent to distribute, and to distribute, five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. On May 21, 2009, Jimenez pleaded guilty to Count One of the indictment. On December 11, 2009, the District Court sentenced the defendant principally to 120 months and one day of imprisonment.

The judgment was entered on December 15, 2009, but the judgment stated incorrectly that the sentence imposed was 120 months of imprisonment, rather than 120 months and one day. An amended judgment reflecting the correct sentence was entered on March 23, 2010. On December 16, 2009, Jimenez filed a timely notice of appeal. We assume the parties’ familiarity with the remaining factual and procedural history of the case. On appeal, Jimenez asserts a single claim.

He argues that his sentence was substantively unreasonable because the statutory mandatory minimum sentence established by 21 U.S.C. § 841 is limited by the parsimony clause of 18 U.S.C. § 3553(a). The parsimony clause of § 3553(

a) provides that the District Court “shall impose a sentence that is sufficient, but not greater than necessary, to comply with the purposes set forth in Paragraph 2 of this subsection.” 18 U.S.C. § 3553(a). Accordingly, Jimenez argues that the District Court — which remarked at sentencing that “if there were no mandatory minimum, Mr. Jimenez would certainly receive less than ten years” and that the Court “wish[ed][it] had more discretion” — was required to impose a sentence below the ten years mandated by statute. The defendant’s argument is without merit. In United States v.

Samas, 561 F.3d 108 (2d Cir.2009), cert. denied, — U.S.-, 130 S.Ct. 184, 175 L.Ed.2d 240 (2009), we expressly rejected the precise argument that Jimenez makes on appeal. Samas held that “[t]he wording of § 3553(

a) is not inconsistent with a sentencing floor.” Id. at 111. That holding controls our decision here. Jimenez attempts to distinguish his case from Samas on the basis that the defendant in Samas did not raise any objections before the district court. Under the circumstances, this distinction is of no legal consequence. We found no error, plain or otherwise, in Samas, see id. at 110-11, just as we find none in the instant case. CONCLUSION For the reasons stated above, we AFFIRM the judgment of the District Court.