United States v. Seal A

56 F. App'x 309

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 21, 2003
• Docket: No. 02-50004; D.C. No. CR-99-00382-AHM-01
• Status: Published

Opinion

MEMORANDUM

**

Seal A appeals the sentence imposed following his guilty plea conviction for conspiring to engage in racketeering activities and committing a violent crime in aid of racketeering in violation of 18 U.S.C. §§ 1962(d) and 1959(a)(5). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the legality of a sentence and for clear error the factual findings regarding the government’s refusal to file a U.S.S.G. § 5K1.1 motion. United States v. Murphy, 65 F.3d 758, 762 (9th Cir.1995). We affirm.

Seal A contends that his sentence should be vacated because the government’s refusal to file a section 5K1.1 downward departure motion was arbitrary, made in bad faith, and based on grounds unrelated to the value of Seal A’s assistance. The government contends that it did not file a section 5kl.l motion because Seal A breached his plea agreement by failing to fully disclose all of the crimes he committed while cooperating with the authorities.

The district court expressly considered the government’s reason for refusing to seek a section 5K1.1 downward 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 section 5K1.1 motion due to failed plea negotiations). As such, the district court properly refused to depart under section 5K1.1. See United States v. Treleaven, 35 F.3d 458, 460 (9th Cir.1994) (recognizing that district court cannot depart without government motion, absent unconstitutional motive in refusing to file motion).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.