Unpublished Disposition, 930 F.2d 31 (9th Cir. 1991)

MEMORANDUM^** 

Martha Zambrano appeals her sentence under the Sentencing Guidelines, following her conviction by guilty plea of conspiracy to possess with intent to distribute heroin in violation of 21 U.S.C. § 846. We affirm.

Where a defendant voluntarily and knowingly waives his right to appeal a sentence as part of a negotiated plea agreement, the waiver is enforceable. United States v. Navarro-Botello, 912 F.2d 318, 319 (9th Cir. 1990). We will entertain an appeal only if "the sentence imposed is not in accordance with the negotiated agreement." Id. Zambrano does not claim that the waiver of her right to appeal in this case was involuntary, unknowing, or not in accordance with the negotiated agreement. Rather, she claims not to have waived her right to appeal the sentence under the present circumstances.

Although Zambrano waived the right to appeal generally, she retained the right if the sentence was above the guidelines range or related to a legal interpretation of the guidelines as applied. Whether the guidelines requires the government to move for a downward departure under the circumstances of this case presents an appealable legal question under both Zambrano's plea agreement and 18 U.S.C. § 3742(a) (2). This court is not barred under Navarro-Botello, therefore, from entertaining Zambrano's appeal.

Nor does United States v. Morales, 898 F.2d 99 (9th Cir. 1990) jurisdictionally bar this appeal. See United States v. Mena, No. 89-10434, slip op. 1671, 1674 (9th Cir. Feb. 8, 1991) ("a district court's perception that it lacks the power to depart from a Guideline range stems not from an exercise of discretion but from an interpretation of the law, and is therefore appealable").

Section 5K1.1 of the Sentencing Guidelines implements section 3553(e) of Title 18, which permits a downward adjustment to a defendant's sentence based on his "substantial assistance in the investigation or prosecution of another." The adjustment is expressly conditioned on a motion from the government. Except " [p]erhaps in an egregious case--a case where the prosecution stubbornly refuses to file a motion despite overwhelming evidence that the accused's assistance has been so substantial as to cry out for meaningful relief," the trial court has no independent authority to grant the downward adjustment. United States v. La Guardia, 902 F.2d 1010, 1017 (1st Cir. 1990); United States v. Kuntz, 908 F.2d 655, 657 (10th Cir. 1990); United States v. Ayarza, 874 F.2d 647, 653 (9th Cir. 1989), cert. denied, 110 S. Ct. 847 (1990).

Zambrano provides no evidence that the information she gave the government was of consequence to its prosecution of other offenders. Indeed, no one was prosecuted, arrested, or even identified on the basis of her information. However well-meaning or risky her efforts, therefore, this is simply not an "egregious case."

Finally, Zambrano asserts due process and eighth amendment challenges to her sentence. "Sentencing which falls within statutory limits is not subject to appellate review absent an abuse or abdication of discretion." United States v. Kinsey, 843 F.2d 383, 392 (9th Cir. 1988). The district court's sentence was within the statutory range for the offense and in fact was the mandatory minimum established by Congress. We have previously rejected due process and eighth amendment challenges to a similar provision of this title, see United States v. Brownlie, 915 F.2d 527 (9th Cir. 1990), and do not find Zambrano's arguments to be any more compelling here.

AFFIRMED.