                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                        FILED
                              FOR THE NINTH CIRCUIT                          JUL 20 2012

                                                                        MOLLY C. DWYER, CLERK
                                                                          U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                          No. 11-10502

                Plaintiff - Appellee,              D.C. No. 4:10-cr-03360-CKJ

  v.
                                                   MEMORANDUM *
LEON MOLISTO,

                Defendant - Appellant.



                     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,


          *
             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).
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.




                                           2                                    11-10502
