United States v. Michael Ybarra

Opinion

United States Court of Appeals FOR THE EIGHTH CIRCUIT

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No. 99-2563

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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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Michael Ybarra, * [UNPUBLISHED]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.

Michael Ybarra appeals his sentence for conspiring to distribute methamphetamine. For reversal, Ybarra 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. Ybarra 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 Ybarra 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). Ybarra also has not shown how he was prejudiced by the denial of his sentencing-continuance motion. See United States v. Ulrich, 953 F.2d 1082, 1085 (8th Cir. 1991).

Accordingly, we affirm.

A true copy.

Attest:

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