     Case: 14-31163       Document: 00513456412         Page: 1     Date Filed: 04/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 14-31163
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                              April 7, 2016
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

DENAIR RILEY,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                            USDC No. 2:11-CR-235-11


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Pursuant to a plea agreement, Denair Riley pleaded guilty to conspiracy
to distribute, and to possess with intent to distribute, 280 grams or more of
cocaine base, and 500 grams or more of cocaine hydrochloride, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A) and (B), and 846; and use of a communication
facility (telephone) to facilitate that crime, in violation of 21 U.S.C. § 843(b).
The plea agreement contained, inter alia, a provision that, if Riley cooperated


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
    Case: 14-31163    Document: 00513456412     Page: 2   Date Filed: 04/07/2016


                                 No. 14-31163

and provided “substantial assistance”, the Government could, “in its
discretion”, move for a sentence reduction.
      At sentencing, the Government declined to exercise that discretion,
citing Riley’s lack of cooperation. The court sentenced him to the statutory
mandatory minimum of 240 months’ imprisonment.             In challenging that
sentence, Riley does not contend his plea agreement was unknowing or
involuntary.   Instead, he asserts only that the Government breached the
agreement by failing, based on his substantial assistance, to move for a
downward departure.      He acknowledges, however, that the Government
retained discretion to move for such a departure.
      A court cannot grant a downward departure for substantial assistance
unless the Government so moves. E.g., United States v. Krumnow, 476 F.3d
294, 297 (5th Cir. 2007). “The refusal to move for downward departure is
reviewable only for unconstitutional motivation when [the Government’s] sole
discretion is retained.” United States v. Aderholt, 87 F.3d 740, 743 (5th Cir.
1996). Riley fails to claim an unconstitutional motivation, asserting only that
his refusal to cooperate was because he feared for his safety.
      AFFIRMED.




                                       2
