                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 05a0931n.06
                           Filed: November 23, 2005

                                           No. 04-3087

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT



UNITED STATES OF AMERICA,            )
                                     )
      Plaintiff-Appellee,            )
                                     )                        ON APPEAL FROM THE
              v.                    )                         UNITED STATES DISTRICT COURT
                                     )                        FOR THE SOUTHERN DISTRICT
DEBUAL NARANJO,                      )                        OF OHIO
                                     )
      Defendant-Appellant.           )
____________________________________


BEFORE: MOORE, GIBBONS, and GRIFFIN, Circuit Judges.

       PER CURIAM.

       Defendant Debual Naranjo appeals his sentence, imposed following the entry of his plea of

guilty to conspiracy to possess with intent to distribute over five kilograms of cocaine in violation

of 21 U.S.C. § 846. Naranjo contends that his Fourteenth Amendment due process rights were

violated because the government declined to file a downward departure motion on his behalf. For

support, Naranjo alleges that the decision not to file a departure motion was improperly made solely

by a DEA agent. We are unpersuaded by Naranjo’s arguments and, accordingly, affirm his sentence.

                                                 I.

       Following the entry of Naranjo’s guilty plea, the district court sentenced him to the statutory

minimum of 120 months in prison. The plea agreement did not obligate the government to file a

motion authorizing a downward departure from the presumptive guidelines range or the statutory
minimum due to Naranjo’s assistance to law enforcement, and the government did not make such

a motion. Although Naranjo objected to the government’s failure to make the motion, he did not

argue that the government’s decision was based on unconstitutional motives or that it violated his

constitutional rights. Instead, his argument was that he had fully cooperated and that leaving the

decision about such a motion in the discretion of a DEA agent was “offensive to the American

justice system.” Specifically, Naranjo’s counsel said:

       I think to leave the discretion basically in the hands of an agent, where the agent
       either relates to the United States attorney or doesn’t relate to the United States
       attorney that he feels in his own discretion that there has been substantial assistance
       given is offensive to the American justice system.

       I think that the way the 5-K 1 is drafted that what occurred here is not, I believe, in
       the best interest of justice.

                                               * * *

       . . . And I think that what occurred here was improper, but I realize that I had no
       recourse under the Constitutional provisions.


                                                 II.

       Because Naranjo did not raise in the district court the error he now asserts on appeal, we

review his sentence only for plain error. In doing so, we ask whether there was error that was plain

and that affected Naranjo’s substantial rights. United States v. Oliver, 397 F.3d 369, 378 (6th Cir.

2005) (citation omitted). If so, we consider whether the error “seriously affected the fairness,

integrity, or public reputation of the judicial proceedings.” United States v. Humphrey, 287 F.3d

422, 430 (6th Cir. 2002). Only upon such a finding may we exercise our discretion to notice the

error. See id.; Ninety-Three Firearms, 330 F.3d at 424 (“[O]ur decision not to address Short’s

factually and legally unsupported argument does not result in a miscarriage of justice.”).


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       Naranjo cannot meet any prong of the Oliver test. The courts have authority to review the

prosecution’s refusal to file a substantial-assistance departure motion only “if they find that the

refusal was based on an unconstitutional motive,” such as the defendant’s race or religion. United

States v. Rashid, 274 F.3d 407, 418 (6th Cir. 2000) (quoting Wade v. United States, 504 U.S. 181,

185-86 (1992)). There is no authority to review the government’s departure decision for bad faith

or lack of a rational basis. United States v. Moore, 225 F.3d 637, 641 (6th Cir. 2000). Nor may the

courts second-guess the government’s assessment of whether Naranjo rendered substantial

assistance. See Rashid, 274 F.3d at 418 (citing United States v. Bagnoli, 7 F.3d 90, 91-92 (6th Cir.

1993) (evidentiary hearing not required even though defendant provided some assistance to law

enforcement and the government gave no explanation for its refusal to file a departure motion)).

Because Naranjo does not allege that the government’s decision not to file a departure motion was

motivated by some unconstitutional animus, the district court had no authority to review the

government’s decision not to file a departure motion, nor do we.

       Lastly, we note that Naranjo’s claim that the prosecution’s departure decision-making

process violated his due process rights is factually unsupported. Naranjo presents nothing to

substantiate his assertion that the decision not to file a departure motion was made by a DEA agent

rather than by the prosecution. He merely tries to shift the burden onto the prosecution by noting,

“there is no showing that a prosecutor was involved in this decision.”

       Moreover, it is difficult to fathom how prosecutors could avoid relying on the opinions of

law enforcement personnel in determining whether a defendant rendered substantial assistance.

After all, a departure motion under U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e) reflects a defendant’s

assistance to law enforcement. Therefore, police officers or federal law enforcement agents often


                                                -3-
will necessarily be in the best position to advise the prosecution as to the nature and quality of a

defendant’s assistance.

       In sum, there was no error here, plain or otherwise, and no effect on Naranjo’s substantial

rights. Affirmed.




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