United States v. Cruz

31 F. App'x 428

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2002
• Docket: No. 01-30003; D.C. No. CR-00-05070-FDB
• Status: Published

Opinion

MEMORANDUM

**

Froylan Trinidad Cruz appeals his 101-month sentence imposed after pleading guilty to several counts of controlled substance offenses committed with a firearm, in violation of 21 U.S.C. § 841(a)(1), (b)(1) and 18 U.S.C. § 924(c)(1). Cruz challenges the Government’s refusal to move for downward departure under U.S.S.G. § 5K1.1, because he contends the Government’s motive was unconstitutional. We review the legality of the district court’s imposition of sentence de novo, and its factual findings concerning the government’s motive for clear error. United States v. Murphy, 65 F.3d 758, 762 (9th Cir.1995). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

Notwithstanding the fact that the district court departed below the statutory minimum pursuant to the Government’s motion under 18 U.S.C. § 3553(e), Cruz contends the district court should have further departed pursuant to § 5K1.1, because he contends the government acted arbitrarily in refusing to make a motion under this guideline. We find Cruz’s contention unavailing.

The district court here expressly considered the Government’s reason for refusing to seek a § 5K1.1 departure, and did not clearly err in finding no unconstitutional motive or arbitrary conduct rising to the level of a due process violation. See Wade v. United States, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992); Murphy, 65 F.3d at 763-64 (finding no unconstitutional motive where government refused to file § 5K1.1 motion due to failed plea negotiations); United States v. Burrows, 36 F.3d 875, 884 (9th Cir.1994). As such, the district court properly exercised its discretion in refusing to depart under § 5K1.1. United States v. Treleaven, 35 F.3d 458, 460 (9th Cir.1994) (as amended on denial of rehearing) (recognizing that district court cannot depart without government motion, absent unconstitutional motive in refusing to file motion).

AFFIRMED.¹

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9 th Cir. R. 36-3.

1 . All other pending motions are denied as moot.