USA v. Thomas J. Ballanco

1 The Honorable Donald E. O’Brien, United States District Judge for the
Northern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1245
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Rosalio Rios-Melendres, * [UNPUBLISHED]
*
Appellant. *
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Submitted: December 16, 2003
Filed: February 3, 2004
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Before WOLLMAN, JOHN R. GIBSON, and RILEY, Circuit Judges.
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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.

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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).
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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.
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