United States v. Vejar-Nunez

154 F. App'x 588

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 15, 2005
• Docket: No. 05-30124
• Status: Published

Opinion

MEMORANDUM

**

Eldert Vejar-Nunez appeals his 84-month sentence after pleading guilty to one count of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a), (b)(1)(B), and 846. We have jurisdiction to review this timely appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We review the legality of a sentence de novo, United States v. Delgado-Cardenas, 974 F.2d 123, 126 (9th Cir.1992), and we affirm.

Vejar-Nunez’s only claim on appeal is that the district court erred in determining that the government’s failure to file a USSG § 5K1.1 substantial assistance motion was not subject to review.

Vejar-Nunez correctly asserts that under Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992), and Delgado-Cardenas, a court can review the government’s failure to make substantial assistance motions where those decisions are arbitrary or based on unconstitutional motives. See Wade, 504 U.S. at 185-87, 112 S.Ct. 1840; Delgado-Cardenas, 974 F.2d at 126. However, Vejar-Nunez has failed to demonstrate that the government’s decision not to file a USSG § 5K1.1 motion in this case was arbitrary or based on unconstitutional motives. See United States v. Burrows, 36 F.3d 875, 884 (9th Cir.1994).

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.