United States of America, Plaintiff-appellee, v. Gilberto Rivera-esquer, Defendant-appellant, 35 F.3d 573 (9th Cir. 1994)

MEMORANDUM^** 

Gilberto Rivera-Esquer appeals his 120-month sentence following entry of a guilty plea to conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. §§ 952(a); 960(a), (b) (1). Pursuant to Anders v. California, 386 U.S. 738 (1967), Rivera-Esquer's counsel filed a brief stating that he finds no meritorious issues for review. Counsel also filed a motion to withdraw as counsel of record. Rivera-Esquer, in a letter directed to counsel for the government, claims that he was told that he would receive a downward departure from the statutory maximum based his substantial assistance to the government, under U.S.S.G. Sec. 5K1.1.¹  We have jurisdiction under 28 U.S.C. § 1291. We affirm the district court's judgment and grant counsel's motion to withdraw.

We review de novo the legality of a sentence. United States v. Delgado-Cardenas, 974 F.2d 123, 126 (9th Cir. 1992). Absent a substantial assistance motion by the government, the district court may not depart downward based upon a defendant's substantial assistance under U.S.S.G. Sec. 5K1.1 unless the prosecutor's refusal to file the motion "was based upon an unconstitutional motive, such as race or religion or ... the refusal was not rationally related to any legitimate state objective." Id.

Rivera-Esquer does not allege that he provided substantial assistance, or that the prosecutor refused to file a substantial assistance motion because of improper reasons or for reasons not related to a legitimate government end. The district court properly declined to grant a downward departure.

The government's motion to dismiss this appeal is denied as moot. Counsel's motion to withdraw is GRANTED and the judgment is AFFIRMED.