                    United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-1167
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Minnesota.
Michael Wayne Mucker,                    *    [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                            Submitted: July 1, 1998

                                Filed: July 7, 1998
                                    ___________

Before BOWMAN, Chief Judge, WOLLMAN, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                             ___________

PER CURIAM.

      Michael Wayne Mucker appeals the sentence imposed after he pleaded guilty
to possessing crack cocaine with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1) (1994). We affirm.

      Mucker entered into a written plea agreement whereby he agreed to cooperate
by providing information and testimony concerning his and others& drug activities and
the government agreed to move under 18 U.S.C. § 3553(e) (1994) for a substantial-
assistance departure below the five-year statutory minimum sentence. The agreement
contemplated a Guidelines imprisonment range of 46 to 57 months. The district court1
accepted Mucker&s plea, granted the government&s section 3553(e) motion, denied
Mucker&s request for a further departure under U.S. Sentencing Guidelines Manual
§ 5K1.1, p.s. (1997), and sentenced Mucker to 46 months’ imprisonment and four
years’ supervised release.

      Mucker attacks the government&s refusal to make a section 5K1.1 departure
motion. We agree with the government that Mucker has failed to make a substantial
showing that the government’s refusal to make such a motion was based upon an
unconstitutional motive or that it was irrational. See Wade v. United States, 504 U.S.
181, 185-86 (1992); United States v. Lewis, 3 F.3d 252, 255 (8th Cir. 1993) (per
curiam).

      The judgment is affirmed.

      A true copy.

             Attest:

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




      1
      The Honorable Richard H. Kyle, United States District Judge for the District of
Minnesota.

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