United States of America, Plaintiff-appellee, v. Michael E. Jones, Defendant-appellant, 142 F.3d 446 (9th Cir. 1998)

MEMORANDUM¹ 

Michael Jones appeals the sentence imposed following his guilty plea to bank robbery. We affirm.

Relying on Koon v. United States, 518 U.S. 81, 116 S. Ct. 2035, 135 L. Ed. 2d 392 (1996), Jones contends that the district court erred in concluding that it lacked the discretion to depart downward for substantial assistance to authorities pursuant to U.S.S.G. § 5K1.1. We reject this contention.

Absent a motion by the government, the district court lacks the authority to depart downward for substantial assistance to authorities unless the government's refusal to file a motion was "based on an unconstitutional motive." See Wade v. United States, 504 U.S. 181, 185-86, 112 S. Ct. 1840, 118 L. Ed. 2d 524 (1992); United States v. Murphy, 65 F.3d 758, 762 (9th Cir. 1995). Jones' reliance on Koon is misplaced because Koon did not alter the Supreme Court's prior holding in Wade, 504 U.S. at 185, that the district court lacks the authority to depart downward absent a government motion. Because Jones does not allege that the government acted with an unconstitutional motive in refusing to file a substantial assistance motion, the district court properly concluded that it lacked the discretion to depart downward.

AFFIRMED.