United States of America v. Frank D. Davis, Jr., Appellant, 72 F.3d 920 (D.C. Cir. 1995)

This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. The court has determined that the issues presented occasion no need for an opinion. See D.C. Cir. Rule 36(b). It is

ORDERED AND ADJUDGED that appellant's sentence be affirmed. The sentencing court may grant a downward departure to recognize a defendant's substantial assistance to authorities only on the government's motion. See United States Sentencing Guidelines Sec. 5K1.1; United States v. Ortez, 902 F.2d 61, 64 (D.C. Cir. 1990). A defendant is not entitled to a downward departure merely because he has made a good faith effort to assist the government. Instead, the government has broad discretion to determine whether a defendant has, in fact, provided substantial assistance warranting a motion for downward departure. See United States v. Jones, 58 F.3d 688, 691 (D.C. Cir. 1995). The government's decision not to move for departure is conclusive unless it "violates the terms of a cooperation agreement, is intended to punish defendant for exercising [his] constitutional rights, or is based on some unjustifiable standard or classification such as race." United States v. Doe, 934 F.2d 353, 358 (D.C. Cir. 1991). No such circumstances are present here.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 41(a).