                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                 IN THE UNITED STATES COURT OF APPEALS               December 22, 2003
                         FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                                                                          Clerk

                               No. 03-10530
                             Summary Calendar



     UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,

            versus

     JASPER JEROME WILLIAMS,

                                              Defendant-Appellant.




            Appeal from the United States District Court
                 for the Northern District of Texas
                      USDC No. 3:98-CR-385-5-H



Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Jasper Jerome Williams, federal prisoner # 32904-077, appeals

the district court’s denial of his postconviction motion requesting

that the Government be made to file a motion for a downward

departure   of   Williams’s    sentence   based    upon   his     substantial

assistance.       Williams    states   that   he   provided       substantial

assistance after the Government in April 2002 had filed and the


     *
      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opinion should not be published and is not precedent except under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.
district court had granted a postconviction FED. R. CRIM. P. 35(a)

motion for a downward departure and that the Government promised to

file another Rule 35 motion.*    He seeks for this court to compel

the Government to file a motion for a downward departure or to

order the district court to conduct an evidentiary hearing.

     The Government’s failure to file a Rule 35 motion for a

downward departure is discretionary and not reviewable unless the

defendant   makes   a   substantial   threshold   showing   that   the

Government’s refusal was based upon unconstitutional motives, such

as the defendant’s race or religion.      Wade v. United States, 504

U.S. 181, 185-86 (1992); United States v. Urbani, 967 F.2d 106, 109

(5th Cir. 1992).    See also United States v. Sneed, 63 F.3d 381,

388-89 n.6 (5th Cir. 1995).    Williams has not made such a showing

(nor indeed has he alleged any such motives).

                              AFFIRMED.




     *
      The Government had also filed prior to Williams’s May 7,
1999, sentencing a motion for downward departure under § 5K1.1 of
the Sentencing Guidelines, based on Williams’s substantial
assistance, and at sentencing the district court granted that
motion. Williams’s plea agreement provided in part “[a] motion for
downward departure from the applicable guidelines under U.S.S.G. §
5K1.1 will be filed by the Government if, and only if, in the sole
discretion of the United States Attorney for the Northern District
of Texas, it is determined that the Defendant had rendered
substantial assistance to the Government in its investigation and
prosecution of others.” (emphasis added).

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