                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         April 27, 2006
                               TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,
             Plaintiff-Appellee,                        No. 05-2137
 v.                                              (D.C. No. CR-02-1020-JC)
 MARY FLORES-HERNANDEZ,                                (D. New Mex.)
             Defendant-Appellant.


                          ORDER AND JUDGMENT *


Before KELLY, McKAY, and LUCERO, Circuit Judges.


      After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2). The case is therefore

ordered submitted without oral argument.

      Appellant was indicted by a grand jury in a three-count indictment for

charges involving the possession, importation, and intent to distribute 100

kilograms or more of marijuana. She then pleaded guilty without a plea

agreement. The presentence report placed her in criminal history category III and


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
recommended a guideline sentencing range of 41 to 51 months’ imprisonment.

The minimum sentence required by statute for the offenses to which Appellant

pleaded guilty, however, was 60 months’ imprisonment. At sentencing,

Appellant asserted that her criminal history categorization over-represented her

criminal history and moved for a reduced categorization. She also asked for a

downward departure from the statutory minimum sentence. The district court

rejected both of these motions.

      Appellant argues that the district court abused its discretion when it did not

depart downward from the statutory minimum sentence of 60 months.

Specifically, Appellant argues that the court should have considered that she

suffered from battered woman’s syndrome. Because Appellant did not present

this argument to the district court at sentencing, we review for plain error. To

qualify as plain error, the error must be (1) error, (2) that is plain, (3) that affects

Appellant’s substantial rights, and (4) that “seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.” United States v. Olano,

507 U.S. 725, 732 (1993) (internal quotation omitted).

      In Appellant’s case, the district court correctly determined that it was not

within its discretion to depart downward from the statutory minimum and,

therefore, there was no error. The sentencing provision of the drug statutes to

which Appellant pleaded guilty contains a safety valve that allows for the court to


                                           -2-
depart downward from the statutory minimum sentence. 18 U.S.C. § 3553(f). But

the safety valve only applies if (1) the defendant has no more than one criminal

history point; (2) the defendant did not “use [or threaten] violence” nor possess a

dangerous weapon; (3) “the offense did not result in death or serious bodily injury

to any person”; (4) the defendant did not organize the offense; and (5) the

defendant has completely cooperated with the investigation. Id.

      The district court assessed four criminal history points for four

misdemeanors in Appellant’s record and noted that the presentence report listed

“thirteen other convictions for which [Appellant] did not receive criminal history

points.” Memorandum Opinion and Order, 7-8 (D.N.M. Apr. 29, 2005). The

district court concluded that “[g]iven her lengthy criminal history, the Court does

not believe the criminal history category over-represents [Appellant’s] criminal

history or her likelihood to commit other crimes.” Id. at 8. Because the district

court held that Appellant had more than one criminal history point, it held that she

did not qualify for § 3553(f)’s safety valve.

      We have carefully reviewed the briefs of Appellant and Appellee, the

record on appeal, and the district court’s order. For substantially similar reasons

to those laid out by the district court in its order, we hold that there was no error

and, therefore, no plain error, and AFFIRM the district court’s sentence.

                                                Entered for the Court


                                          -3-
      Monroe G. McKay
      Circuit Judge




-4-
