United States v. Pedro Diaz-Franco

98 F.3d 1347 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Pedro DIAZ-FRANCO, Defendant-Appellant. No. 95-10508. United States Court of Appeals, Ninth Circuit. Submitted Sept. 17, 1996. * Decided Oct. 3, 1996. Before: CHOY, CANBY, and FERNANDEZ, Circuit Judges. 1 MEMORANDUM ** 2 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). 3 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…