          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                May 18, 2009
                               No. 08-10652
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

KEN CORNELL ROBERSON

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                         USDC No. 3:00-CR-428-ALL


Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Ken Cornell Roberson appeals the denial of his motion for a reduction of
his sentence pursuant to 18 U.S.C. § 3582(c). The district court denied the
motion, determining that it lacked authority to reduce Roberson’s sentence below
the statutory minimum term of imprisonment. The Government has moved to
dismiss the appeal as frivolous. See 5 TH C IR. R. 42.2. Roberson argues that he
was entitled to a motion for a downward departure pursuant to 18 U.S.C.



      *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                 No. 08-10652

§ 3553(e) and that the Government declined to file such a motion because of
improper motives.
      Section 3582(c) provides a mechanism by which a defendant may seek the
“retroactive application of a subsequently lowered guideline range.” See United
States v. Shaw, 30 F.3d 26, 29 (5th Cir. 1994). It does not authorize a sentence
below the statutory minimum term of imprisonment. If a defendant provides
assistance to the Government, the Government may, but is not required to, file
a § 3553(e) motion permitting a district court to depart below the statutory
minimum term of imprisonment. United States v. Wade, 504 U.S. 181, 185
(1992). Although a district court will review the Government’s decision not to
file such a motion if it was based on unconstitutional motives, Roberson’s vague
allegations of an improper motive are insufficient to make the substantial
threshold showing required. See id. at 186.
      Without a motion to depart pursuant to § 3553(e), the district court had
no authority to sentence Roberson below the statutory minimum, as it correctly
determined and, therefore, did not abuse its discretion in denying Roberson’s
§ 3582(c) motion. See Shaw, 30 F.3d at 28. For these reasons, the Government’s
motion to dismiss is GRANTED, Roberson’s motion for appointment of counsel
is DENIED, and this appeal is DISMISSED. See 5 TH C IR. R. 42.2.




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