                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 98-2665
                                    ___________

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                                         *   [UNPUBLISHED]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

                            Submitted: November 27, 1998
                                Filed: December 4, 1998
                                    ___________

Before WOLLMAN, HANSEN, and MURPHY, Circuit Judges.
                          ___________

PER CURIAM.

       Todd Steven Remine pleaded guilty to bank robbery, in violation of 18 U.S.C.
§ 2113(a). At sentencing, Remine argued that the district court1 should depart
downward under U.S. Sentencing Guidelines Manual § 4A1.3, p.s. (1997) from the
applicable Guidelines imprisonment range, because his Category V criminal history
overstated the seriousness of his criminal history. He also argued that the government
had acted in bad faith when it refused to file a substantial-assistance departure motion


      1
        The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
under U.S. Sentencing Guidelines Manual § 5K1.1, p.s. (1997). The court denied
Remine&s section 4A1.3 motion and declined to order the government to file a section
5K1.1 motion. The court then sentenced Remine at the bottom of the applicable range
to 70 months imprisonment and three years supervised release, and ordered him to pay
$3,020 in restitution. Remine appeals, and we affirm.

       Remine first argues that the district court was unaware of its authority to depart
downward under section 4A1.3. After reviewing the district court&s comments as a
whole, see United States v. Knight, 96 F.3d 307, 311 (8th Cir. 1996), cert. denied, 117
S. Ct. 1458 (1997), we conclude the district court was aware of its authority to depart
downward, and made a discretionary decision not to do so--a decision we do not
review, see United States v. Hall, 7 F.3d 1394, 1396 (8th Cir. 1993) (district court&s
decision not to depart downward under § 4A1.3 is unreviewable if court is aware of its
authority to do so).

       Remine next argues that the district court erred in failing to determine whether
he had provided substantial assistance to the government. However, a prosecutor&s
discretionary decision not to file a motion for downward departure for substantial
assistance is reviewable only after “the defendant makes a #substantial threshold
showing& of prosecutorial discrimination or irrational conduct.” United States v.
Romsey, 975 F.2d 556, 557-58 (8th Cir. 1992) (citing Wade v. United States, 504 U.S.
181, 186 (1992)); see also United States v. Kelly, 18 F.3d 612, 617-18 (8th Cir. 1994)
(district court can grant downward departure based on substantial assistance if
defendant shows government withheld motion, inter alia, in bad faith). Remine&s plea
agreement expressly vested the government with discretion to assess whether Remine
had provided substantial assistance, and we believe Remine&s arguments amount to
nothing more than disagreement with the government over whether his assistance was
substantial; significantly, after the government explained its reason for not filing the
motion, Remine failed to present any additional evidence showing bad faith on the part
of the government. Thus, we do not believe Remine made the type of substantial

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showing that would entitle him to further inquiry or remedy by the district court. See
Wade, 504 U.S. at 186 (“[A] claim that a defendant merely provided substantial
assistance will not entitle a defendant to a remedy or even to discovery or an
evidentiary hearing. Nor would additional but generalized allegations of improper
motive.”); see also United States v. Isaac, 141 F.3d 477, 484 (3d Cir. 1998) (holding
that district court has jurisdiction to determine whether refusal to file § 5K1.1 motion
was in bad faith; explaining that after government has explained its reasons for not
filing motion, defendant must make some showing of bad faith to trigger hearing).

      Accordingly, the judgment is affirmed.

      A true copy.

             Attest:

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




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