United States v. Otero-Ortiz ( 1997 )

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 97-1369





                                    UNITED STATES,



                                      Appellee,



                                          v.



                                 JOSE A. OTERO-ORTIZ,



                                Defendant, Appellant.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Hector M. Laffitte, U.S. District Judge]
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                                        Before



                                Torruella, Chief Judge,
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                           Stahl and Lynch, Circuit Judges.
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            Joseph  C. Laws,  Jr., Federal  Public Defender,  and Miguel  A.A.
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        Nogueras-Castro,  Assistant Federal  Public  Defender,  on  brief  for
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        appellant.

            Guillermo   Gil,  United   States  Attorney,   Nelson  Perez-Sosa,
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        Assistant  United States Attorney, and Jose A. Quiles-Espinosa, Senior
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        Litigation Counsel, on brief for appellee.





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                                  Octoberf 24, 1997

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                 Per  Curiam.    After pleading  guilty,  appellant  Jose
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            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.,
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            United States  v. Catucci,  55 F.3d 15,  18 (1st  Cir. 1995);
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            United States v. Field, 39 F.3d 15, 21 (1st Cir. 1994).  Even
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            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
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            (8th Cir.), cert. denied, ___ S. Ct. ___, 1997 WESTLAW 562074
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            (U.S.,  Oct.  6,  1997).    There  was  no  evidence  of  any



            extraordinary physical  impairment.  See, e.g., United States
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            v. Rabins,  63 F.3d 721,  728 (8th Cir. 1995),  cert. denied,
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            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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