United States v. Melissa R. Ortiz

Opinion

United States Court of Appeals FOR THE EIGHTH CIRCUIT

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No. 99-2820

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United States of America, *

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Appellee, * Appeal from the United States * District Court for the District v. * of Nebraska.

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Melissa R. Ortiz, * [UNPUBLISHED]

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Appellant. *

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Submitted: February 7, 2000

Filed: February 10, 2000

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Before LOKEN, FAGG, and HANSEN, Circuit Judges.

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PER CURIAM.

Melissa R. Ortiz appeals her sentence for conspiring to distribute methamphetamine. For reversal, Ortiz raises various challenges to the government's failure to move for a sentencing departure under U.S. Sentencing Guidelines Manual § 5K1.1, p.s. (1999), and 18 U.S.C. § 3553(e).

We reject these contentions. Ortiz did not complain at sentencing about the lack of a departure motion, the plea agreement preserved the government's discretion whether to move for departure, and Ortiz made no substantial threshold showing the

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government acted irrationally, in bad faith, or based on an unconstitutional motive. See United States v. Kelly, 18 F.3d 612, 617-18 (8th Cir. 1994); United States v. Romsey, 975 F.2d 556, 558 (8th Cir. 1992); United States v. Oransky, 908 F.2d 307, 309 (8th Cir. 1990). As to Ortiz's sentencing-continuance argument, we note the district court granted her motion for a continuance.

We also reject Ortiz's contention that she should receive a downward departure under U.S. Sentencing Guidelines Manual § 5K2.0, p.s. (1999) based on her postoffense rehabilitation, youth, minor role, and parental obligations--a departure she did not seek at the time of her sentencing. Cf. United States v. Favara, 987 F.2d 538, 540 (8th Cir. 1993).

Accordingly, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.