United States of America, Plaintiff/appellee, v. Anthony Wade Brown, Defendant/appellant, 912 F.2d 453 (10th Cir. 1990)

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.I. FACTS

Defendant Anthony Wade Brown entered a plea of guilty to the charge of conspiracy to distribute heroin in violation of 21 U.S.C. § 846 (1988). In compliance with the plea agreement, the government submitted a confidential memorandum to the district court which indicated that Mr. Brown supplied information that assisted the government in indicting additional wholesale suppliers of heroin and cocaine. Mr. Brown argued below that this confidential memorandum was the "functional equivalent" of a government motion to depart under 18 U.S.C. § 3553(e) (1988) and Sec. 5K1.1 of the United States Sentencing Guidelines. On appeal, Mr. Brown challenges the district court's denial of his motion to impose sentence below statutory minimum.

Although defendant stylized his motion as one to impose sentence below the statutory minimum, under the present sentencing structure, we interpret this motion as one to impose sentence below the Sentencing Guidelines. Such an approach is consistent with the citations and arguments of both parties. Mr. Brown argues that the government's confidential memorandum containing information concerning his substantial assistance is the "functional equivalent" of a government motion to depart. See United States v. Justice, 877 F.2d 664, 668-69 (8th Cir. 1989); United States v. White, 869 F.2d 822, 828-29 (5th Cir. 1989). We have already decided that a trial court's authority to grant a Sec. 5K1.1 reduction requires an actual motion by the prosecution and that even "a stipulation in the Memorandum of Understanding that defendant was entitled to a reduction of two offense levels for acceptance of responsibility" was not the functional equivalent of a motion. United States v. Kuntz, 908 F.2d 655, 656-58 (10th Cir. 1990). In Kuntz we recognized that the applicable sections²  expressly "condition the district court's consideration of defendant's substantial assistance claim upon a prior motion of the government." Id. at 657. We believe our holding in Kuntz fully rejects the "functional equivalent" doctrine urged by defendant. Cf. United States v. Musser, 856 F.2d 1484, 1486-87 (11th Cir. 1988).

AFFIRMED.