                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 26 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                    No. 98-1327
                                                    (D.C. No. 98-CR-146-B)
    JOSE LUIS SIERRA ROBLES,                               (D. Colo.)

                Defendant-Appellant.




                            ORDER AND JUDGMENT            *




Before ANDERSON and KELLY , Circuit Judges, and           BROWN , ** Senior
District Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Defendant was charged by indictment with one count of possession of

cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). After

pleading guilty, he was sentenced to the statutory mandatory minimum of

120 months’ imprisonment.      See id. § 841(b)(1)(A)(ii). Defendant appeals his

sentence, challenging the district court’s interpretation and application of the

sentencing guidelines and applicable statute.     1
                                                      We review the legal question

relating to the district court’s interpretation of the United States Sentencing

Guidelines de novo. See United States v. Wilkinson         , 169 F.3d 1236, 1237

(10th Cir. 1999). We affirm.

       Defendant’s presentence investigation report assigned him two criminal

history points for a 1996 misdemeanor offense. The offense was fraudulent use

of telephone service (use of an invalid telephone calling card), for which

defendant was sentenced to the 88 days he served while awaiting sentencing

and three years of unsupervised probation. In addition to the two criminal history

points for the prior misdemeanor offense, two criminal history points were added



1
       In the notice of appeal and the docketing statement, defendant states that he
is appealing the denial of his motion to suppress evidence, as well as his sentence.
In his brief on appeal, defendant states that the district court’s denial of his
motion to suppress “is not a matter on appeal.” Appellant’s Br. at 2 n.1.

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because defendant committed the drug offense while he was on probation. Four

criminal history points placed defendant in criminal history category III.     See

United States Sentencing Commission,       Guidelines Manual (USSG), Ch. 5 Pt. A,

Sentencing Table (Nov. 1997). That category, combined with defendant’s total

offense level of 29, resulted in a guideline range of 108 to 135 months. The

statutory mandatory minimum for defendant’s offense is 120 months, resulting in

a guideline range of 120 to 135 months.      See id . § 5G1.1 (stating where statutory

mandatory minimum falls within guideline range, sentence shall be no less than

statutorily required minimum).

       At sentencing, the district court found that criminal history category III

overstated the seriousness of defendant’s past criminal conduct. Consequently,

the district court departed from the otherwise applicable guideline range by

placing defendant in criminal history category I.     See id. § 4A1.3, p.s. (stating

sentencing court may depart from guideline range and use guideline range

corresponding to a lower criminal history category if it concludes the higher

criminal history category “significantly over-represents the seriousness of

a defendant’s criminal history or the likelihood that the defendant will commit

further crimes”).

       Someone who falls within criminal history category I has, by definition,

0 or 1 criminal history point.   See id. Ch. 5, Pt. A, Sentencing Table. Defendant


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argued at sentencing that because the court departed to criminal history category

I, which carries 0 or 1 criminal history point, he should be eligible for the “safety

valve” provision in 18 U.S.C. § 3553(f) and USSG § 5C1.2. The statute and

guideline provide that if a defendant does not have more than 1 criminal history

point, as determined under the sentencing guidelines, and meets several other

criteria, the sentencing court may disregard the statutory mandatory minimum

sentence. The district court declined to apply the “safety valve” of § 3553(f),

however, finding that defendant was not eligible for relief under the statute

because he had more that 1 criminal history point as calculated under USSG

§ 4A1.1. Defendant asks this court to hold that because the district court departed

downward to place him in criminal history category I, he is eligible for relief

under § 3553(f) and that the district court erred in finding it had no discretion to

disregard the statutory mandatory minimum in sentencing him.

       We join the other circuits that have decided this issue and hold that

a defendant cannot avail himself of the “safety valve” of § 3553(f) if he has more

than 1 criminal history point as determined under USSG § 4A1.1, regardless of

his criminal history category.   See United States v. Robinson , 158 F.3d 1291, 1294

(D.C. Cir. 1998), cert. denied, 119 S. Ct. 1155 (1999);   United States v. Orozco ,

121 F.3d 628, 630 (11th Cir. 1997);   United States v. Ward , No. 95-5967, 1996

WL 531017, at **1 (4th Cir. Sept. 19, 1996) (unpublished);     United States v.


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Moog , Nos. 95-3389, 95-3417, 95-4184, 1996 WL 431343, at **1 (8th Cir.

Aug. 2, 1996) (unpublished);   United States v. Resto , 74 F.3d 22, 28 (2d Cir.

1996); United States v. Valencia-Andrade    , 72 F.3d 770, 774 (9th Cir. 1995).

      The statute is clear and unambiguous; it gives the sentencing court

discretion to disregard the statutory mandatory minimum sentence only if

a defendant has no more than one criminal history point as determined under

the guidelines. Application note 1 to USSG § 5C1.2, in turn, defines “more than

1 criminal history point, as determined under the sentencing guidelines,” as used

in subsection (1) of that section, to mean “more than one criminal history point as

determined under § 4A1.1 (Criminal History Category).” Because defendant had

four criminal history points as calculated under § 4A1.1, the district court was

correct in finding that it did not have discretion under § 3553(f) to disregard the

statutory mandatory minimum sentence. The statute is clear and unambiguous,

and our task is to apply it as written. The redress defendant seeks is a legislative

matter that must come from Congress. AFFIRMED.



                                                     Entered for the Court



                                                     Wesley E. Brown
                                                     Senior District Judge



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