DocketNumber： 97-1369
Filed Date： 10/27/1997
Status： Precedential
Modified Date： 9/21/2015
[NOT FOR PUBLICATION]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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