                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 26, 2007

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-41599
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

JUAN ANTONIO ESPINOZA,
                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                    USDC No. 5:04-CR-2141-ALL
                       --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Juan Antonio Espinoza pleaded guilty to possession with

intent to distribute cocaine in excess of five kilograms in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A).      Espinoza

appeals his sentence, baldly asserting that (1) the district

court erred when it refused to reduce his sentence pursuant to

U.S.S.G. § 5K1.1; (2) the district court erred when it failed to

continue his sentencing hearing so that the Government might file

a motion under § 5K1.1; and (3) he is entitled to a remand so

that the district court can determine why the Government failed


     *
       Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
                            No. 05-41599
                                 -2-

to file a motion pursuant to § 5K1.1.      The brief comes perilously

close to failing to preserve any argument for appeal.      See United

States v. Thames, 214 F.3d 608, 612 (5th Cir. 2000).      His

assertions are frivolous.

     The district court was without authority to reduce

Espinoza’s sentence in the absence of a Government motion under

U.S.S.G. § 5K1.1.   See Wade v. United States, 504 U.S. 181, 184-

85 (1992); United States v. Price, 95 F.3d 367, 367-68 (5th Cir.

1996).   The district court offered to continue the sentencing,

but Espinoza did not request it, and he has not alleged, much

less shown, that the district court’s failure to sua sponte

continue the hearing affected his substantial rights.      See United

States v. Dominquez Benitez, 542 U.S. 74, 83 (2004); United

States v. Olano, 507 U.S. 725, 731-737 (1993).      Finally,

Espinoza’s request for a remand is baseless given that the

district court is without authority to investigate why the

Government failed to file a motion under § 5K1.1 absent

allegations that it did so for unconstitutional reasons.        See

Wade, 504 U.S. at 185; Price, 95 F.3d at 368.

     The appeal is dismissed as frivolous.     5TH CIR. R. 42.2.      We

caution counsel that filing frivolous appeals may be sanctioned.

United States v. Gaitan, 171 F.3d 222, 223 (5th Cir. 1999).

     APPEAL DISMISSED; SANCTION WARNING ISSUED.
