USCA1 Opinion

[NOT FOR PUBLICATION]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

_____________________
Nogueras-Castro,
_______________
appellant.

Assistant Federal

Public Defender,
Public

Defender,

and Miguel A
_________
on

brief

Guillermo
Gil,
_______________
Assistant

United

States

Attorney,

Nelson Perez-So
________________

United States Attorney, and Jose A. Quiles-Espinosa, Sen

_______________________

Litigation Counsel, on brief for appellee.

____________________

Octoberf 24, 1997

____________________

Per Curiam.
___________

After pleading

guilty,

appellant

Jose

Otero- Ortiz was

21

U.S.C.

convicted of drug offenses

841, 846, and 18

U.S.C.

2.

in violation of

He was sentenced

to 10-years' imprisonment, the mandatory minimum required

21

U.S.C.

841(b)(1)(A),

and

release.

Appellant has AIDS.

that the

district court

downward departure

erred by declining

mistaken assumption that

Because

departure

below, this

United States
_____________

years

supervised

appellant never

issue has

to grant

has AIDS due to

health cannot form

v. Catucci,
_______

of

His sole argument on appeal is

because he

departure.

five

the basis of

requested

been waived.

55 F.3d 15,

that

were not

so,

the

contention

him a

the court's

18 (1st

downward

See,
___

e.g.,
____

Cir. 1995);

United States v. Field, 39 F.3d 15, 21 (1st Cir. 1994).

_____________
_____

if

by

is meritless.

Even

No

authority

exists for

statutory

minimum

condition.

a sentencing

based merely

United States v.
_____________

court to

on

the

depart

from a

defendant's health

Rounsavall, 115 F.3d

__________

561, 566

(8th Cir.), cert. denied, ___ S. Ct. ___, 1997 WESTLAW 562074
_____ ______

(U.S.,

Oct.

6,

1997).

extraordinary physical

There

was

impairment.

no

evidence

63 F.3d 721,

728 (8th Cir. 1995),

116 S. Ct.

1031 (1996).

Thus,

cert. denied,
_____ ______

even if appellant had

and

qualified for a downward departure

the

district court

mandatory minimum.

asked

based on his health,

bound to

Accordingly, the

any

See, e.g., United States

___ ____ _____________

v. Rabins,
______

was still

of

impose

the 10-year

judgment of conviction

-2-

is affirmed.
________

-3-