Unpublished Disposition, 928 F.2d 1138 (9th Cir. 1991)

No. 90-10472.

United States Court of Appeals, Ninth Circuit.

On Appeal From the United States District Court for the District of Guam, No. CR-89-130-CCD; Cristobal C. Duenas, District Judge, Presiding.

AFFIRMED.

Before BEEZER and NOONAN, Circuit Judges, and SINGLETON,^**  District Judge.

MEMORANDUM^*** 

Lopez appeals his sentence under the Sentencing Guidelines for conspiracy to possess 52 kilograms of marijuana. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Lopez argues that Sec. 5K1.1 is unconstitutional because its requirement that the government initiate any motion for a sentence reduction is not authorized by statute. We rejected an argument nearly identical to this one in United States v. Ayarza, 874 F.2d 647, 653 & n. 2 (9th Cir. 1989) (Commission did not exceed its statutory authority in limiting sentencing court's discretion to motions by government), cert. denied, 110 S. Ct. 847 (1990). Section 5K1.1 must be upheld unless it is arbitrary, capricious, or manifestly contrary to the statute. United States v. Lewis, 896 F.2d 246, 247 (7th Cir. 1990). We hold that Sec. 5K1.1 does not violate due process.

AFFIRMED.