United States v. Otalvora-Millan , 88 F. App'x 457 ( 2004 )

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Hugo Otalvora-Millan’s appeal from the judgment of the district court be DISMISSED.

Defendant-Appellant Hugo Otalvora-Millan appeals from a ten-year sentence entered on June 4, 2003 in the United States District Court for the Eastern District of New York (Dearie, J.) after he pled guilty to one count of possession with the intent to distribute more than one kilogram of heroin in violation of 21 U.S.C. § 841(a)(1). Familiarity with the facts of this appeal is presumed.

Otalvora argues that the district court abused its discretion by refusing to grant him a downward departure below the statutory minimum sentence. “[A] district court may impose a sentence of imprisonment below a statutory minimum for a drug crime if: (1) the government makes a motion pursuant to 18 U.S.C. § 3553(e) asserting the defendant’s substantial assistance to the government; or (2) the defendant meets the ‘safety valve’ criteria set forth, in 18 U.S.C. § 3553(f).” United States v. Medley, 313 F.3d 745, 749 (2d Cir.2002). Since the Government filed no such motion and since Otalvora concedes that his criminal history precludes his eligibility for the “safety valve,” Otalvora’s downward departure motions were invalid as a matter of law. See id. at 750 (holding that when no statutory “exception applies ... the district court lack[s] the authority to impose a sentence less than the statutory mandatory minimum”). Otalvora’s appeal of the district court's refusal to downward depart is DISMISSED.

For the foregoing reasons, Otalvora’s appeal from the judgment of the district court is hereby DISMISSED.