                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS        December 12, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-20431
                         Summary Calendar



UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

versus


RENOJ COX-CRUZ,

                                              Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. H-02-CR-542-1
                      --------------------

Before JOLLY, WIENER, and DENNIS, CIRCUIT JUDGES.

PER CURIAM:*

     Defendant-Appellant Renoj Cox-Cruz appeals from the sentence

imposed following his guilty-plea conviction for possession with

intent to distribute one kilogram or more of heroin in violation of

21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(A)(i).        Cox-Cruz

argues that the district court committed error when it sentenced

him to 120-months’ imprisonment after denying his motion for a



     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
downward departure based on the low purity level of the heroin

involved in his case and his offense role.

      The district court’s denial of Cox-Cruz’s motion was not based

on the merits of his arguments regarding the downward departure,

but rather on the district court’s lack of authority to sentence

Cox-Cruz below the 120-month minimum sentence set forth in 21

U.S.C. § 841(b)(1)(A).       In Cox-Cruz’s case, the government did not

file a motion for downward departure indicating that Cox-Cruz had

provided substantial assistance.         The district court therefore had

no authority to grant a downward departure below the statutory

minimum.     See 18 U.S.C. § 3553(e); see also United States v.

Alvarez, 51 F.3d 36, 39 (5th Cir. 1995).                Additionally, because

Cox-Cruz    had   more    than   one   criminal       history     point,    he     was

ineligible for relief under 18 U.S.C. § 3553(f)(1), set forth in

U.S.S.G.    §   5C1.2(a)(1),     which   provides       for   a      limitation     on

applicability of the statutory minimum in specified situations.

The   district    court    therefore     did    not    commit     error     when    it

determined that it lacked authority to sentence Cox-Cruz below the

statutory       minimum    sentence       set     forth         in     21    U.S.C.

§ 841(b)(1)(A)(i).

      The judgment of the district court is

AFFIRMED.
