UNITED STATES of America, Plaintiff-Appellee, v. Saturnino ORTIZ-LOPEZ, Defendant-Appellant, 544 F. App'x 718

MEMORANDUM Saturnino Ortiz-Lopez appeals from the district court’s judgment and challenges the 60-month sentence imposed following his guilty-plea conviction for possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Ortiz-Lopez contends that district court overstated his criminal history by including in his criminal history calculation two points for being on probation at the time of the offense.

He argues that this error caused the court improperly to deny him safety-valve relief in contravention of the parties’ plea agreement, which stated that Ortiz-Lopez “may” be eligible for safety-valve relief. We review de novo. See United States v. Lichtenberg, 631 F.3d 1021, 1024 (9th Cir.2011). The district court properly included the two points in Ortiz-Lopez’s criminal history because the record reflects that he was on probation at the time of his arrest in this case. See U.S.S.G. § 4Al.l(d).

Because Ortiz-Lopez had three criminal history points, the district court correctly concluded that it lacked discretion to find him safety-valve eligible. See 18 U.S.C. § 3553(f)(1); United States v. Hernandez-Castro, 473 F.3d 1004, 1007-08 (9th Cir.2007). Ortiz-Lopez next contends that his sentence is substantively unreasonable. We review for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The district court did not abuse its discretion. Ortiz-Lopez’s 60-month sentence represents the statutory minimum term for his offense.

See 21 U.S.C. § 841(a)(1), (b)(l)(B)(i). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.