                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No. 08-30076
                Plaintiff-Appellee,
                                                   D.C. No.
               v.
                                             1:06-cr-00155-RFC-
JUAN GABRIEL FLORES, AKA                               1
Abraham Goytia,
                                                   OPINION
             Defendant-Appellant.
                                          
        Appeal from the United States District Court
                 for the District of Montana
      Richard F. Cebull, Chief District Judge, Presiding

                  Submitted January 21, 2009*
                     Seattle, Washington

                      Filed March 18, 2009

   Before: Thomas M. Reavley,** Senior Circuit Judge,
Richard C. Tallman and Milan D. Smith, Jr., Circuit Judges.

                   Opinion by Judge Reavley




  *The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
  **The Honorable Thomas M. Reavley, Senior United States Circuit
Judge for the Fifth Circuit, sitting by designation.

                                3525
3528                UNITED STATES v. FLORES
                            COUNSEL

Palmer A. Hoovestal, Hoovestal Law Firm, PLLC, Helena,
Montana, for the plaintiff-appellant.

James E. Seykora, Assistant United States Attorney, Billings,
Montana, for the defendant-appellee.


                            OPINION

REAVLEY, Senior Circuit Judge:

   Defendant-Appellant Juan Flores appeals the sentence
imposed by the district court, asserting that the Government
wrongfully refused to move for a substantial assistance sen-
tencing reduction under U.S.S.G. § 5K1.1, even though he
allegedly provided information useful to the investigation of
criminal activity, and that the district court erred in denying
his request for an evidentiary hearing to evaluate the extent of
his assistance. We affirm.

                       I.   Background

   Defendant pleaded guilty to a charge of conspiracy to pos-
sess cocaine with intent to distribute, in violation of 21 U.S.C.
§§ 841 and 846, pursuant to a plea agreement in which the
Government promised to dismiss two other charges and to
recommend a sentencing reduction for Defendant’s accep-
tance of responsibility. The agreement also contemplated a
“[p]otential [d]eparture” for Defendant’s substantial assis-
tance in the form of a motion under either U.S.S.G. § 5K1.1,
Fed. R. Crim. P. 35, or both. “Substantial assistance” is
defined in the agreement as “complete, truthful, forthright,
material, important, valuable and meaningful information.”
The Government’s obligations are prescribed in the agree-
ment as follows:
                   UNITED STATES v. FLORES                  3529
    The United States will consider and evaluate any
    written proffer or nature of information and the rec-
    ommendations of law enforcement. If the prosecu-
    tion concludes that the assistance provided is
    substantial, truthful, and complete, as required, a
    departure motion determined by the government to
    be appropriate under the circumstances will be made.
    By this agreement the defendant is not offered or
    promised that a departure motion, or any specific
    type of motion, will be filed by the [G]overnment.
    The defendant acknowledges that no promise has
    been made and accepts this agreement that no such
    motion will be filed if the [G]overnment determines
    that the information is either untruthful, willfully
    incomplete, of little value, or insubstantial.

(second emphasis added). Defendant acknowledged at his
subsequent re-arraignment that the Government had neither
offered nor promised a departure motion under the plea agree-
ment.

   It is undisputed that Defendant met with and provided
truthful information to two DEA agents and the prosecutor.
Based on this cooperation, Defendant stated in his pre-
sentence submission that he expected the Government to
move for a departure based on his substantial assistance.
However, the Government notified Defendant that it would
not file a § 5K1.1 motion.

   At his sentencing, Defendant asserted that the Government
had refused in bad faith to file a § 5K1.1 motion and
requested an evidentiary hearing at which he sought to prove
his substantial assistance through the testimony of the DEA
agents and the prosecutor. The prosecutor acknowledged that
Defendant had begun to cooperate, but explained that his
assistance was not substantial as of that date because the Gov-
ernment had not yet indicted or arrested anyone based on the
information he provided. The district court accepted the Gov-
3530                UNITED STATES v. FLORES
ernment’s representation, and, relying on United States v.
Jones, 264 F. App’x 616 (9th Cir. 2008) (unpublished deci-
sion), denied Defendant’s request for an evidentiary hearing.
Without specifically addressing Defendant’s further request
that a reduction for substantial assistance was warranted under
18 U.S.C. § 3553(a) despite the Government’s failure to
request it, the court then imposed a within-Guidelines sen-
tence of 170 months’ imprisonment.

                        II.   Discussion

   We review the legality of Defendant’s sentence de novo,
but the district court’s factual findings regarding the Govern-
ment’s reasons for refusing to file a § 5K1.1 motion are
reviewed for clear error. United States v. Murphy, 65 F.3d
758, 762 (9th Cir. 1995). “Whether the district court is
required to enforce a plea agreement is a question of law sub-
ject to de novo review.” United States v. Patterson, 381 F.3d
859, 863 (9th Cir. 2004). However, “there is a conflict in our
case law concerning the proper standard to be applied to a dis-
trict court’s interpretation of a plea agreement.” United States
v. Transfiguracion, 442 F.3d 1222, 1227 (9th Cir. 2006) (cit-
ing conflicting authorities prescribing either de novo or clear
error review). We need not resolve this conflict, however,
because the result is the same under either standard. See
United States v. Franco-Lopez, 312 F.3d 984, 988-89 (9th Cir.
2002).

   Defendant contends that he provided information material
to the investigation of other criminal activity, and the district
court erred by deferring to the Government’s characterization
of his assistance as insubstantial merely because it had not
resulted in any arrests or indictments. In Defendant’s view,
the court should have granted his request for an evidentiary
hearing to determine whether his assistance was substantial
because the absence of any arrests or indictments are attribut-
able to the Government’s own failure to act on the informa-
tion he provided. Defendant further construes the
                    UNITED STATES v. FLORES                  3531
Government’s inaction as a breach of its obligations under the
plea agreement.

   [1] Section 5K1.1 permits a district court to depart from the
Guidelines “[u]pon motion of the government stating that the
defendant has provided substantial assistance in the investiga-
tion or prosecution of another person who has committed an
offense.” U.S.S.G. § 5K1.1. This provision empowers the
government to move for a departure when a defendant has
substantially assisted, but it imposes no duty to do so. See
Wade v. United States, 504 U.S. 181, 185, 112 S. Ct. 1840
(1992); United States v. Arishi, 54 F.3d 596, 597 (9th Cir.
1995). Even if a defendant has provided substantial assis-
tance, we may not grant relief unless the government’s refusal
to file a § 5K1.1 motion was based on impermissible motives,
constituted a breach of a plea agreement, or was not rationally
related to a legitimate governmental purpose. See United
States v. Treleaven, 35 F.3d 458, 461 (9th Cir. 1994) (citing
Wade, 504 U.S. at 185-86, 112 S. Ct. 1840). Our precedent
also requires the Government to make a good faith evaluation
of a defendant’s assistance as of the date of sentencing to
determine the appropriateness of a § 5K1.1 motion. See
United States v. Quach, 302 F.3d 1096, 1102 (9th Cir. 2002).
Thus, the Government may not defer its evaluation of a defen-
dant’s pre-sentence assistance by relying on the possibility of
a post-sentencing departure motion under Fed. R. Crim. P. 35.
See id. at 1102 (construing such a deferral as an improper
conflation of the temporal distinction between pre- and post-
sentence assistance under § 5K1.1 and Fed. R. Crim. P. 35,
respectively); see also United States v. Awad, 371 F.3d 583,
586, 589-90 (9th Cir. 2004) (holding the district court abused
its discretion by imposing a sentence based on the govern-
ment’s incomplete evaluation of the defendant’s admittedly
substantial pre-sentence assistance and allowing the govern-
ment to revisit the issue at a later date). But whether the assis-
tance provided was actually substantial is a decision that
better rests with the prosecutor, not the court. United States v.
Burrows, 36 F.3d 875, 884 (9th Cir. 1994).
3532                UNITED STATES v. FLORES
   [2] Here, the Government evaluated Defendant’s assistance
and deemed it insubstantial because it had not resulted in any
arrests or indictments as of the time of sentencing. Although
the Government also noted that Defendant’s information
might eventually lead to arrests or indictments of others, this
observation does not detract from the fact that the Govern-
ment fulfilled its limited obligation to timely assess the qual-
ity of his assistance. Having made the requisite determination,
the Government did not improperly defer its assessment of the
assistance provided, as it did in Awad and Quach.

   [3] The Government’s broad discretion to determine the
appropriateness of a substantial assistance motion is also
embodied in the plea agreement. As Defendant acknowl-
edged, both in the agreement and orally at his re-arraignment,
the agreement plainly disclaimed any obligation or promise
on the part of the Government to file a substantial assistance
motion, and further cautioned that no such motion would be
filed if the Government were to find the information to be
“untruthful, willfully incomplete, of little value, or insubstan-
tial.” Because these terms vest discretion in the Government
to evaluate the quality of Defendant’s assistance, the most
Defendant could expect was a good faith evaluation of the
information he provided. This is what he received. In a recent
unpublished case, we construed identical language in a plea
agreement not to require a § 5K1.1 motion when the Govern-
ment deemed the information provided to be “of little value
because it did not result in any arrests, indictments, or convic-
tions.” Jones, 264 F. App’x at 617. We similarly conclude
here that the Government acted within its express discretion
under the agreement when it determined that the absence of
arrests, indictments, or convictions resulting from Defen-
dant’s information rendered his assistance insubstantial as of
the time of sentencing. The Government’s refusal to move for
a substantial assistance reduction therefore did not breach the
plea agreement.

   [4] Finally, Defendant’s insistence that he provided sub-
stantial assistance does not entitle him to an evidentiary hear-
                    UNITED STATES v. FLORES                 3533
ing. See Wade, 504 U.S. at 186, 112 S. Ct. 1840 (“[A] claim
that a defendant merely provided substantial assistance will
not entitle a defendant to a remedy or even to discovery or an
evidentiary hearing.”). To warrant a hearing, Defendant must
make a substantial threshold showing that the Government’s
refusal to file a § 5K1.1 motion was unconstitutional, arbi-
trary, or breached the plea agreement. Treleaven, 35 F.3d at
461. As noted above, the Government acted within its discre-
tion under the plea agreement when it found Defendant’s
assistance insubstantial and accordingly refused to move for
a reduction. Defendant has also not alleged, much less shown,
that the Government’s decision was based on an unconstitu-
tional motive. He merely asserts that the Government’s failure
to arrest or indict anyone based on the information he pro-
vided suggests arbitrariness or bad faith. That the Govern-
ment’s investigation had not culminated in arrests or
indictments as of the time of sentencing, by itself, does not
suggest the presence of an illicit motive, and Defendant failed
to present any evidence substantiating the type of misconduct
from which bad faith may be inferred. See, e.g., United States
v. Khoury, 62 F.3d 1138, 1141-43 (9th Cir. 1995) (concluding
the Government’s refusal to file a § 5K1.1 motion in retalia-
tion for the defendant’s exercise of his right to jury trial per-
mitted the court to exercise its own discretion to grant a
downward departure); Treleaven, 35 F.3d at 461-62 (holding
the defendant was entitled to have the district court consider
a possible substantial assistance departure in spite of the Gov-
ernment’s failure to file a § 5K1.1 motion because of the Gov-
ernment’s misconduct in communicating ex parte with the
defendant and subpoenaing his grand jury testimony without
informing his counsel, thereby impeding his ability to negoti-
ate for a departure motion). Indeed, the Government may
properly base its decision not to file a § 5K1.1 motion on
nothing more than “its rational assessment of the cost and
benefit that would flow from moving,” regardless of the assis-
tance rendered. Wade, 504 U.S. at 187, 112 S. Ct. 1840.
Accordingly, the district court did not err in deferring to the
3534              UNITED STATES v. FLORES
Government’s stated reason for refusing to file a § 5K1.1
motion or denying Defendant’s request for a hearing to prove
the quality of his assistance.

  AFFIRMED.
