                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-2368
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of Minnesota.
Freddie Ross,                             *      [UNPUBLISHED]
                                          *
             Appellant.                   *
                                     ___________

                            Submitted: June 7, 2000
                                Filed: June 16, 2000
                                    ___________

Before MCMILLIAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                            ___________

PER CURIAM.

       Freddie Ross appeals from the final judgment entered upon his guilty plea to
possessing crack with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The
district court1 sentenced Ross to 175 months in prison and 5 years supervised release.
Ross argues the district court erred in denying, after an evidentiary hearing, his motion
seeking a substantial-assistance downward departure. Having carefully reviewed the
record, we affirm.


      1
        The HONORABLE DAVID S. DOTY, United States District Judge for the
District of Minnesota.
      The district court did not err in refusing to grant a downward departure because
Ross did not make a substantial threshold showing that the government’s refusal to file
a substantial-assistance motion was irrational, in bad faith, or based on an
unconstitutional motive. See Wade v. United States, 504 U.S. 181, 186 (1992)
(defendant has no right to remedy in face of government’s refusal unless he or she
makes substantial threshold showing of government’s improper motive; mere claim that
defendant provided substantial assistance, whether standing alone or coupled with
generalized allegations of improper motive, is insufficient); United States v. Kelly, 18
F.3d 612, 617-18 (8th Cir. 1994) (district court is without authority to grant downward-
departure motion for substantial assistance absent government motion, unless defendant
can show government’s refusal to make motion was irrational, in bad faith, or based on
unconstitutional motive). Additionally, the plea agreement explicitly preserved the
government’s discretion to decide whether to move for a downward departure. Cf.
United States v. Barresse, 115 F.3d 610, 612 (8th Cir. 1997) (only unambiguous,
unconditional promises to file downward-departure motions are binding on
government).

      Accordingly, we affirm.

      A true copy.

             Attest:

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




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