142 F.3d 446
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.United States of America, Plaintiff-Appellee,v.Michael E. JONES, Defendant-Appellant.
No. 97-30317.D.C. No. CR-97-02052-1.
United States Court of Appeals,Ninth Circuit.
.Submitted April 20, 19982.Decided April 28, 1998.

Appeal from the United States District Court for the Eastern District of Washington Justin L. Quackenbush, District Judge, Presiding.
Before BRUNETTI, RYMER and T.G. NELSON, Circuit Judges.

MEMORANDUM1

1
Michael Jones appeals the sentence imposed following his guilty plea to bank robbery.  We affirm.


2
Relying on Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), Jones contends that the district court erred in concluding that it lacked the discretion to depart downward for substantial assistance to authorities pursuant to U.S.S.G. § 5K1.1.  We reject this contention.


3
Absent a motion by the government, the district court lacks the authority to depart downward for substantial assistance to authorities unless the government's refusal to file a motion was "based on an unconstitutional motive."   See Wade v. United States, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992);  United States v. Murphy, 65 F.3d 758, 762 (9th Cir.1995).  Jones' reliance on Koon is misplaced because Koon did not alter the Supreme Court's prior holding in Wade, 504 U.S. at 185, that the district court lacks the authority to depart downward absent a government motion.  Because Jones does not allege that the government acted with an unconstitutional motive in refusing to file a substantial assistance motion, the district court properly concluded that it lacked the discretion to depart downward.


4
AFFIRMED.



2
 The panel unanimously finds this case suitable for decision without oral argument.  See Fed.  R.App. P. 34(a);  9th Cir.  R. 34-4


1
 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.  R. 36-3


