United States v. Otero-Ortiz

[NOT FOR PUBLICATION]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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