United States of America v. Leon Molisto

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
** Timothy M. Burgess, United States District Judge for the District of
Alaska, sitting by designation.
The panel unanimously concludes this case is suitable for decision***
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LEON MOLISTO,
Defendant - Appellant.
No. 11-10502
D.C. No. 4:10-cr-03360-CKJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Timothy M. Burgess, District Judge, Presiding**
Submitted July 17, 2012***
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
Leon Molisto appeals from the 60-month sentence imposed following his
guilty-plea conviction for conspiracy to possess with intent to distribute marijuana,
FILED
JUL 20 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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11-10502 2
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(vii), and 846. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Molisto contends that the district court should have applied the rule of lenity
to sentence him to a term below the statutory minimum. Because there is no
dispute that Molisto had three criminal history points, the district court lacked
discretion to sentence him beneath the statutory minimum term of 60 months. See
U.S.S.G. § 5C1.2(a)(1); United States v. Hernandez-Castro, 473 F.3d 1004, 1008
(9th Cir. 2007 (“[D]istrict courts have no authority to adjust criminal history points
for the purpose of determining eligibility for safety valve relief under 18 U.S.C.
§ 3553(f)(1), even when the sentencing court concludes that the criminal history
calculation overstates the severity of the prior crimes.”).
AFFIRMED.

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