                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-1427
                                    ___________

United States of America,                *
                                         *
                   Appellee,             * Appeal from the United States
                                         * District Court for the Eastern
      v.                                 * District of Missouri.
                                         *
Donald C. Moore,                         *     [UNPUBLISHED]
                                         *
                   Appellant.            *
                                    ___________

                               Submitted: November 15, 2000

                                   Filed: November 22, 2000
                                    ___________

Before BOWMAN, FAGG, and BEAM, Circuit Judges.
                           ___________

PER CURIAM.

      Donald C. Moore pleaded guilty to conspiracy to manufacture over 1000 grams
of methamphetamine. The plea agreement provided:

      If the defendant provides assistance to the Government in its ongoing
      narcotic investigation, the Government, at or near the time of sentencing,
      will advise the court of any assistance provided by the defendant. The
      Government, at or near the time of sentencing, will also determine
      whether the defendant's assistance has been so substantial as to warrant
      the filing of a motion for downward departure under Section 5K1.1 of the
      Guidelines and Title 18, United States Code, Section 3553. The
      defendant understands that the Government may, but is not required to,
      make such a downward departure motion. The defendant also
      understands that the decision whether to file a motion for downward
      departure shall be in the sole discretion of the Government. In the event
      the Government files a motion for downward departure . . . the parties
      agree and stipulate that a sentence of 72 months would be appropriate in
      this matter.

After Moore helped the Government, the Government filed a motion under U.S.S.G.
§ 5K1.1, which permitted the court to depart from the minimum Guidelines sentence
of 151 months. The Government did not file a motion under 18 U.S.C. § 3553(e),
which would have allowed the court to impose a sentence below the statutory minimum
of 120 months, however, because the Government did not deem Moore's assistance to
be substantial enough to warrant the additional departure. At sentencing, Moore asked
the district court to enforce the plea agreement and compel the Government to file a §
3553(e) motion. The Government responded that it believed Moore had not been fully
truthful in providing information, his grand jury testimony had been incomplete, and
Moore had diminished his usefulness as a Government witness by using and
manufacturing methamphetamine while free on bond, and smuggling methamphetamine
into his drug treatment facility. The district court denied Moore's request and sentenced
him to 120 months in prison.

        On appeal, Moore argues the plea agreement requires the Government to file a
§ 3553(e) motion, and thus the district court should have compelled performance of the
plea agreement. We disagree. Although the plea agreement states the Government
may file a motion under § 5K1.1 and § 3553(e), we recently rejected the argument
Moore raises in a case involving similar plea agreement language. See United States
v. Vernon, 187 F.3d 884, 885-87 & n.1 (8th Cir. 1999) ("motion may be made pursuant
to . . . Section 3553(e) and Section 5K1.1"). The plea agreement here reserves the
Government's "sole discretion" to evaluate whether the level of Moore's assistance


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merited a departure under § 3553(e). See id. at 887; United States v. Kelly, 18 F.3d
612, 617 (8th Cir. 1994). The Government need not file a § 3553(e) motion every time
it files a § 5K1.1 motion. See Vernon, 187 F.3d at 887. Moore failed to make a
substantial threshold showing that the Government acted irrationally in refusing to
make a § 3553(e) motion. See id.; Kelly, 18 F.3d at 618.

       We conclude the Government did not breach the plea agreement, and thus affirm
the district court.

      A true copy.

            Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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