Case: 10-60587 Document: 00511469745 Page: 1 Date Filed: 05/06/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                             May 6, 2011
                                     No. 10-60587
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

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

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 2 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, 

,
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,

, 968 (5th Cir. 1999). We afford great deference to the district
court’s credibility determination. United States v. Powers, 

, 753
(5th Cir. 1999). Moreover, the district court’s factual determination is plausible
in light of the entire record. See United States v. Davis, 

, 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, 

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 __, 

, 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 

judgment of
the district court is AFFIRMED.




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