                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 03-1245
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Northern District of Iowa.
Rosalio Rios-Melendres,                   *    [UNPUBLISHED]
                                          *
             Appellant.                   *
                                     ___________

                               Submitted: December 16, 2003

                                    Filed: February 3, 2004
                                     ___________

Before WOLLMAN, JOHN R. GIBSON, and RILEY, Circuit Judges.
                          ___________

PER CURIAM.

      Rosalio Rios-Melendres pleaded guilty to conspiracy to distribute 500 grams
or more of methamphetamine. He was sentenced to 121 months of imprisonment.
He now appeals, arguing that the district court1 erred in failing to grant his request for
a downward departure to 108 months of imprisonment. We affirm.




      1
      The Honorable Donald E. O’Brien, United States District Judge for the
Northern District of Iowa.
      Rios-Melendres was convicted of a crime that requires the imposition of a
mandatory minimum sentence of 120 months. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),
and 846. The district court may impose a sentence below the mandatory minimum
in two circumstance: where the government makes a substantial assistance motion
under 18 U.S.C. § 3553(e) or where the defendant is eligible for safety-valve
treatment under 18 U.S.C. § 3553(f). The government did not make a motion for a
downward departure, and Rios-Melendres was not eligible for safety-valve treatment
because he had four criminal history points, yielding a category III,2 and because he
did not disclose all relevant information to the government. So, the district court
could not have imposed a sentence below the statutory mandatory minimum of 120
months.

       Although it could have departed downward to a sentence of 120 months, the
district court denied as not justified by the facts Rios-Melendres’ motion for a
downward departure under U.S.S.G. § 5K2.0 based upon his family circumstances.
Such a decision is not subject to review. United States v. VanHouten, 307 F.3d 693,
697 (8th Cir. 2002).

      The sentence is affirmed.
                      ______________________________




      2
       Although the district court granted his unopposed motion to reduce his
criminal history category to I, Rios-Melendres still did not qualify for safety-valve
treatment. United States v. Webb, 218 F.3d 877, 881-82 (8th Cir. 2000).

                                         -2-
