                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  _____________

                                 No. 00-3477WM
                                 _____________

United States of America,               *
                                        *
             Appellee,                  * On Appeal from the United
                                        * States District Court
      v.                                * for the Western District
                                        * of Missouri.
                                        *
Nadine Wenig,                           * [Not To Be Published]
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: June 12, 2001
                                 Filed: June 28, 2001
                                  ___________

Before MORRIS SHEPPARD ARNOLD and RICHARD S. ARNOLD, Circuit
      Judges, and TUNHEIM,1 District Judge.
                              ___________

PER CURIAM.


      Nadine Wenig has pleaded guilty to conspiracy to distribute methamphetamine,
in violation of 21 U.S.C. §§ 841(a)(1) and 846, and to being a felon in possession of




      1
      The Hon. John R. Tunheim, United States District Judge for the District of
Minnesota, sitting by designation.
a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The District Court2
sentenced Ms. Wenig to ten years and one month (121 months, the low end of the
Guidelines range) on the first count, and to a concurrent term of ten years (120 months)
on the other count. The sentences are to run concurrently. The defendant appeals,
arguing that the District Court erred in denying her motion to compel the United States
to ask the District Court for a favorable departure on the ground of her substantial
cooperation. We affirm.


      Under the plea agreement, the defendant agreed to cooperate fully and truthfully.
With respect to a downward departure for substantial assistance, the agreement read
as follows, in pertinent part:


      9.     . . . Upon the determination by the United States Attorney for the
             Western District of Missouri that the defendant has provided
             "substantial assistance," the United States shall request the Court
             to reduce the sentence defendant would otherwise receive under
             the applicable statutes and/or sentencing guidelines . . .. The
             United States reserves the right to make the sole determination as
             to whether and when the defendant has provided such substantial
             assistance and further whether to request a reduction generally or
             a specific sentence or sentence reduction.


      The Agreement also provided that the government could avoid its obligations
under it "if the United States determines that she has not provided full and truthful
cooperation, or has committed any local, state, or federal crime between the date of this
Plea Agreement and her sentencing . . .." Plea Agreement, 8i.




      2
      The Hon. Dean Whipple, Chief Judge, United States District Court for the
Western District of Missouri.

                                          -2-
        On appeal, Ms. Wenig contends that she abided by the Plea Agreement, and that
the District Court should have required the government to make a motion for downward
departure. On this record, we are constrained to disagree. The government believed
that she had lied to an Assistant United States Attorney in conversations that took place
after the Plea Agreement. Nothing in this record indicates that this belief was irrational.
Moreover, during her release on bond, defendant tested positive for use of
methamphetamine. It was not irrational for the government to decline to move for a
downward departure, nor is there any indication that its action was the result of any
unconstitutional motivation. Without such a motion, the Court had no authority to
depart downward. The judgment is affirmed.

      A true copy.

             Attest:

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




                                           -3-
