65 F.3d 179
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
UNITED STATES of America, Plaintiff-Appellee,v.Marty Wayne MATTHEWS, Defendant-Appellant.
No. 94-6413.
United States Court of Appeals, Tenth Circuit.
Aug. 30, 1995.

ORDER AND JUDGMENT1
Before TACHA, LOGAN and KELLY, Circuit Judges.2
KELLY, Circuit Judge.


1
Defendant-appellant Marty Matthews appeals the 57-month sentence imposed by the district court.  Mr. Matthews contends that the district court erred by refusing to depart downward given his cooperation with the Government.  The Government, however, never filed a U.S.S.G. 5K1.1 motion.  Nonetheless, Mr. Matthews argues that the Government's sentencing memorandum, explaining Defendant's assistance, should be considered the functional equivalent of a 5K1.1 motion.  This argument has been explicitly rejected by United States v. Brown, 912 F.2d 453, 454 (10th Cir.1990) and United States v. Kuntz, 908 F.2d 655, 656-58 (10th Cir.1990).


2
AFFIRMED. The mandate shall issue forthwith.



1
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.  The court generally disfavors the citation of orders and judgments;  nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order.  151 F.R.D. 470 (10th Cir.1993)


2
 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal.  See Fed.  R.App. P. 34(a);  10th Cir.  R. 34.1.9.  The cause therefore is ordered submitted without oral argument


