                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-2348
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of Nebraska
Porsha R. Turner (nee Mayer),            *
                                         *     [UNPUBLISHED]
             Appellant.                  *
                                    ___________

                            Submitted:   November 4, 1999

                                Filed: January 24, 2000
                                    ___________

Before McMILLIAN, RICHARD S. ARNOLD, and HANSEN, Circuit Judges.
                           ___________

PER CURIAM.

       Porsha Turner appeals from the final judgment entered in the District Court1 for
the District of Nebraska upon her guilty plea to conspiring to possess cocaine base with
intent to deliver, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court
sentenced appellant to eighty-seven months imprisonment and five years supervised
release. For reversal, appellant argues that the district court erred in denying her
motion to compel the government to move for a downward departure and in denying

      1
       The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
her motion for a downward departure. For the reasons discussed below, we affirm the
judgment of the district court.

        The government’s discretionary refusal to move for a downward departure
cannot be challenged unless the defendant makes a substantial threshold showing that
the refusal was in bad faith, irrational, or based on an unconstitutional motive. See
United States v. Wilkerson, 179 F.3d 1083, 1086 (8th Cir. 1999). Having reviewed
Turner’s motion to compel and supporting affidavit, we conclude that she did not make
such a showing: the motion merely alleged that the refusal was irrational, and the
affidavit showed a willingness to provide assistance. See Wade v. United States, 504
U.S. 181, 186 (1992) (mere showing that defendant provided substantial assistance,
whether standing alone or coupled with generalized allegations of government’s
improper motive, is insufficient). Moreover, the government’s response demonstrated
that it considered Turner’s assistance and simply found it to be unhelpful.2

       As to Turner’s downward-departure motion, it is clear from the record that the
district court was aware of its authority to depart from the Sentencing Guidelines and
declined to do so, rendering the issue unreviewable. See United States v. Turechek,
138 F.3d 1226, 1228 (8th Cir. 1998) (district court’s discretionary decision not to



      2
        Turner contended that she had been unable to provide further assistance by
serving as a confidential informant to facilitate controlled drug purchases, because it
would have compromised her recovery from drug addiction and her residency at a
halfway house. The government responded that the information Turner initially
provided became stale and of no value to law enforcement because of her unavailability
and time spent away from the drug scene and because her voluntary choice to
participate in extended drug treatment impaired her ability to provide further assistance.
Although the government’s assessment of Turner’s assistance is not irrational, we have
reservations about any practice penalizing defendants who pursue treatment and
rewarding defendants who remain immersed in the drug trade; such a perverse
disincentive to rehabilitation would ill serve the goals of our criminal justice system.
                                           -2-
depart downward from Guidelines is unreviewable so long as court was aware of its
authority to do so).

      Accordingly, we affirm the judgment of the district court.

      A true copy.

            Attest:

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




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