United States of America, Plaintiff-appellee, v. Richard Valdez, Jr., Defendant-appellant, 98 F.3d 1348 (9th Cir. 1996)

MEMORANDUM^** 

Richard Valdez appeals his sentence under the Sentencing Guidelines for his guilty plea conviction to conspiracy to make and pass counterfeit United States currency in violation of 18 U.S.C. § 371. Valdez contends that the district court advised him that he could appeal his sentence, and that the district court erred in not departing downward for substantial assistance pursuant to U.S.S.G. § 5K1.1.

The government has the power, not a duty, to seek a downward departure for substantial assistance under U.S.S.G. § 5K1.1. Wade v. United States, 504 U.S. 181, 185-86 (1992). Ordinarily, a sentencing court cannot grant a downward departure for substantial assistance in the absence of a government motion. See United States v. Treleaven, 35 F.3d 458, 460 (9th Cir. 1994). The plea agreement provided that the "prosecution may move the Court to depart" if Valdez provided substantial assistance in the prosecution of other defendants. At sentencing, the district court concluded it had no discretion to depart. The court noted that the other defendants had pled guilty, and stated " [w]hile it's true that [Valdez] may have been willing to cooperate, the government didn't need his cooperation and therefore, the government has not filed a motion for downward departure." Valdez does not allege that an unconstitutional motive formed the basis for the government's refusal to file a substantial assistance motion. See Wade, 504 U.S. at 185-86. Accordingly, the district court did not err in not departing downward based on Valdez's substantial assistance.

AFFIRMED.