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 1997-10

United States v. Otero-Ortiz ( 1997 )


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  • [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1369
UNITED STATES,
Appellee,
v.
JOSE A. OTERO-ORTIZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Torruella, Chief Judge,
Stahl and Lynch, Circuit Judges.
Joseph  C. Laws,  Jr., Federal  Public Defender,  and Miguel  A.A.
Nogueras-Castro,  Assistant Federal  Public  Defender,  on  brief  for
appellant.
Guillermo   Gil,  United   States  Attorney,   Nelson  Perez-Sosa,
Assistant  United States Attorney, and Jose A. Quiles-Espinosa, Senior
Litigation Counsel, on brief for appellee.
Octoberf 24, 1997
Per  Curiam.    After pleading  guilty,  appellant  Jose
Otero- Ortiz was  convicted of drug offenses  in violation of
21  U.S.C.    841, 846, and 18  U.S.C.   2.  He was sentenced
to 10-years' imprisonment, the mandatory minimum required  by
21  U.S.C.    841(b)(1)(A),  and  five  years  of  supervised
release.  Appellant has AIDS.  His sole argument on appeal is
that the  district court  erred by declining  to grant  him a
downward departure   because he  has AIDS due to  the court's
mistaken assumption that  health cannot form  the basis of  a
departure.   Because  appellant never  requested  a  downward
departure  below, this  issue has  been waived.   See,  e.g.,
United States  v. Catucci,
    55 F.3d 15
    ,  18 (1st  Cir. 1995);
United States v. Field,
    39 F.3d 15
    , 21 (1st Cir. 1994).  Even
if  that  were not  so,  the  contention  is meritless.    No
authority  exists for  a sentencing  court to  depart  from a
statutory  minimum  based merely  on  the  defendant's health
condition.   United States v.  Rounsavall,
    115 F.3d 561
    , 566
(8th Cir.), cert. denied,     S. Ct.    , 1997 WESTLAW 562074
(U.S.,  Oct.  6,  1997).    There  was  no  evidence  of  any
extraordinary physical  impairment.  See, e.g., United States
v. Rabins,
    63 F.3d 721
    ,  728 (8th Cir. 1995),  cert. denied,
    116 S. Ct. 1031 
    (1996).  Thus,  even if appellant had  asked
and  qualified for a downward departure  based on his health,
the  district court  was still  bound to  impose  the 10-year
mandatory minimum.   Accordingly, the  judgment of conviction
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is affirmed.
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