
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 97-1369                                    UNITED STATES,                                      Appellee,                                          v.                                 JOSE A. OTERO-ORTIZ,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            Joseph  C. Laws,  Jr., Federal  Public Defender,  and Miguel  A.A.            _____________________                                 ____________        Nogueras-Castro,  Assistant Federal  Public  Defender,  on  brief  for        _______________        appellant.            Guillermo   Gil,  United   States  Attorney,   Nelson  Perez-Sosa,            _______________                                __________________        Assistant  United States Attorney, and Jose A. Quiles-Espinosa, Senior                                               _______________________        Litigation Counsel, on brief for appellee.                                 ____________________                                  Octoberf 24, 1997                                 ____________________                 Per  Curiam.    After pleading  guilty,  appellant  Jose                 ___________            Otero- Ortiz was  convicted of drug offenses  in violation of            21  U.S.C.    841, 846, and 18  U.S.C.   2.  He was sentenced            to 10-years' imprisonment, the mandatory minimum required  by            21  U.S.C.    841(b)(1)(A),  and  five  years  of  supervised            release.  Appellant has AIDS.  His sole argument on appeal is            that the  district court  erred by declining  to grant  him a            downward departure   because he  has AIDS due to  the court's            mistaken assumption that  health cannot form  the basis of  a            departure.   Because  appellant never  requested  a  downward            departure  below, this  issue has  been waived.   See,  e.g.,                                                              ___   ____            United States  v. Catucci,  55 F.3d 15,  18 (1st  Cir. 1995);            _____________     _______            United States v. Field, 39 F.3d 15, 21 (1st Cir. 1994).  Even            _____________    _____            if  that  were not  so,  the  contention  is meritless.    No            authority  exists for  a sentencing  court to  depart  from a            statutory  minimum  based merely  on  the  defendant's health            condition.   United States v.  Rounsavall, 115 F.3d  561, 566                         _____________     __________            (8th Cir.), cert. denied, ___ S. Ct. ___, 1997 WESTLAW 562074                        _____ ______            (U.S.,  Oct.  6,  1997).    There  was  no  evidence  of  any            extraordinary physical  impairment.  See, e.g., United States                                                 ___  ____  _____________            v. Rabins,  63 F.3d 721,  728 (8th Cir. 1995),  cert. denied,               ______                                       _____ ______            116 S. Ct.  1031 (1996).  Thus,  even if appellant had  asked            and  qualified for a downward departure  based on his health,            the  district court  was still  bound to  impose  the 10-year            mandatory minimum.   Accordingly, the  judgment of conviction                                         -2-            is affirmed.               ________                                         -3-
