United States v. Leon Molisto

MEMORANDUM *** Leon Molisto appeals from the 60-month sentence imposed following his guilty-plea conviction for conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(l)(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)(l); United States v. Hernandez-Castro, 473 F.3d 1004, 1008 (9th Cir.2007) (“[District 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. Footnotes [***] fhis disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.