United States of America, Plaintiff-appellee, v. Pedro Diaz-franco, Defendant-appellant, 98 F.3d 1347 (9th Cir. 1996)

MEMORANDUM^** 

Pedro Diaz-Franco appeals from the sentence imposed following a conviction for one count of possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a) (1). Diaz-Franco argues that the district court erred by failing to grant him relief from the ten-year mandatory minimum sentence pursuant to the "safety valve," of 18 U.S.C. § 3553(f).

Relief under the "safety valve" is available where a defendant has no more than one criminal history point. 18 U.S.C. § 3553(f) (1). Diaz-Franco concedes that he has at least three criminal history points which resulted from a 1990 DUI conviction. Appellant's Opening Brief at 13. Nevertheless, Diaz-Franco argues that two of the three criminal history points resulted from his inability to comply with the terms of his probation due to his sporadic menial employment and unemployment. Under these facts, Diaz-Franco asserts that Congress could not have intended to preclude relief under the "safety valve."

Our recent decision in United States v. Valencia-Andrade mandates rejection of Diaz-Franco's argument. 72 F.3d 770, 774 (9th Cir. 1995) (holding that § 3553(f) "explicitly precludes departure from the mandatory minimum provisions of 21 U.S.C. § 841 if the record shows that a defendant has more than one criminal history point."). Because Diaz-Franco has more than one criminal history point, the district court lacked authority to impose a sentence below the mandatory minimum of ten years.

AFFIRMED.