                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 26 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30040

              Plaintiff - Appellee,              D.C. No. 1:07-CR-00001-TMB

  v.
                                                 MEMORANDUM *
ROCK SHOGHI BALDWIN,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Alaska
                   Timothy M. Burgess, District Judge, Presiding

                        Argued and Submitted July 28, 2010
                                Anchorage, Alaska

Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.

       Rock Shoghi Baldwin appeals from the 151-month sentence imposed

following his guilty-plea conviction for distribution of child pornography and

possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(2),

(a)(4)(B), (b)(1), and (b)(2). The facts are known to the parties and need not be



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
repeated here.

      Baldwin contends that the district court erred in refusing to grant any relief

for the Government’s refusal to file a substantial assistance departure motion

pursuant to U.S.S.G. § 5K1.1. To warrant any relief, Baldwin was required to

“make a substantial threshold showing that the Government’s refusal to file a

§ 5K1.1 motion was unconstitutional, arbitrary, or breached [a] plea agreement.”

United States v. Flores, 559 F.3d 1016, 1020 (9th Cir. 2009). However, Baldwin

failed to make any showing below beyond his claim that he “provided substantial

assistance” and “generalized allegations of improper motive.” Wade v. United

States, 504 U.S. 179, 186 (1992). Furthermore, the district court did not err in

concluding that there was no agreement to file a § 5K1.1 motion.1 Because his

“claim as presented to the District Court failed to rise to the level warranting

judicial enquiry,” Baldwin is entitled to no relief. Id. at 187.

      AFFIRMED.




      1
        Although the parties dispute whether the standard of review should be clear
or plain error, we reach the same conclusion under either standard.

                                           2
