United States v. R. Rios-Melendres

87 F. App'x 7

• Court: Court of Appeals for the Eighth Circuit
• Decided: February 3, 2004
• Docket: 03-1245
• Status: Unpublished

Opinion

PER CURIAM.

Rosalio Rios-Melendres pleaded guilty to conspiracy to distribute 500 grams or more of methamphetamine. He was sentenced to 121 months of imprisonment. He now appeals, arguing that the district court 1 erred in failing to grant his request for a downward departure to 108 months of imprisonment. We affirm.

Rios-Melendres was convicted of a crime that requires the imposition of a mandatory minimum sentence of 120 months. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The district court may impose a sentence below the mandatory minimum in two circumstance: where the government makes a substantial assistance motion under 18 U.S.C. § 3553(e) or where the defendant is eligible for safety-valve treatment under 18 U.S.C. § 3553(f). The government did not make a motion for a downward departure, and Rios-Melendres was not eligible for safety-valve treatment because he had four criminal history points, yielding a category III, 2 and because he did not disclose all relevant information to the government. So, the district court could not have imposed a sentence below the statutory mandatory minimum of 120 months.

Although it could have departed downward to a sentence of 120 months, the district court denied as not justified by the facts Rios-Melendres’ motion for a downward departure under U.S.S.G. § 5K2.0 based upon his family circumstances. Such a decision is not subject to review. United States v. VanHouten, 307 F.3d 693, 697 (8th Cir.2002).

The sentence is affirmed.

1 . The Honorable Donald E. O'Brien, United States District Judge for the Northern District of Iowa.

2 . Although the district court granted his unopposed motion to reduce his criminal history category to I, Rios-Melendres still did not qualify for safety-valve treatment. United States v. Webb, 218 F.3d 877, 881-82 (8th Cir.2000).