IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60587

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SHELBY BOLDEN,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 1:09-CR-55-1

Before JOLLY, GARZA, and STEWART, Circuit Judges.

PER CURIAM:

*

Shelby Bolden appeals the statutory mandatory minimum 10-year

sentence he received after pleading guilty to possession with intent to distribute

50 grams or more of a mixture and substance containing cocaine base (crack) in

violation of 21 U.S.C. § 841(a)(1) . Bolden argues that the district court erred in

denying a safety valve reduction because the Government’s assertion that he

was untruthful was based on mere conjecture. He further asserts that the Fair

Sentencing Act of 2010 (FSA) should be applicable to his case because his appeal

United States Court of Appeals

Fifth Circuit

F I L E D

May 6, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 10-60587 Document: 00511469745 Page: 1 Date Filed: 05/06/2011
No. 10-60587

was still pending at the time Congress enacted the provision. Additionally,

Bolden argues that because the FSA imposed only a procedural change, it is

exempt from the Savings Clause. Bolden’s motion to file his reply brief and

record excerpts under seal is GRANTED.

This court reviews the district court’s decision whether to grant a safety

valve adjustment for clear error. United States v. McCrimmon, 443 F.3d 454,

457 (5th Cir. 2006). Here, the district court made an “independent

determination,” concluding that Bolden’s testimony was not credible and that,

as evidenced by the credibility and demeanor of all the witnesses, Bolden had

not been completely truthful with the Government. See United States v. Miller,

179 F.3d 961, 968 (5th Cir. 1999). We afford great deference to the district

court’s credibility determination. United States v. Powers, 168 F.3d 741, 753

(5th Cir. 1999). Moreover, the district court’s factual determination is plausible

in light of the entire record. See United States v. Davis, 76 F.3d 82, 84 (5th Cir.

1996). Accordingly, the district court did not clearly err in denying a safety valve

reduction based on Bolden’s failure to truthfully and fully disclose to the

Government. See Miller, 179 F.3d 961 at 968.

Bolden’s assertion that the FSA is applicable to his case is equally without

merit. We have held that pursuant to the federal Savings Clause, which

requires courts to apply the penalties in place at the time the defendant

committed the offense unless the relevant act expressly states otherwise, see 1

U.S.C. § 109, the FSA’s reduction of statutory penalties in § 841 was not

retroactive. United States v. Doggins, __ F.3d __, 2011 WL 438935, at *4 (5th

Cir. Feb. 9, 2011). Bolden committed the instant offense on July 24, 2008;

therefore, the FSA is of no benefit to him in spite of the fact that his appeal was

still pending when the FSA was enacted. See id. Accordingly, the judgment of

the district court is AFFIRMED.

2

Case: 10-60587 Document: 00511469745 Page: 2 Date Filed: 05/06/2011