                  UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                          __________________

                              No. 91-3696
                           Summary Calendar
                          __________________



     UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

                                versus

     LARRY URBANI,

                                         Defendant-Appellant.

         ______________________________________________

      Appeal from the United States District Court for the
                  Eastern District of Louisiana
         ______________________________________________

                           (July 13, 1992)


Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.

GARWOOD, Circuit Judge:

     Defendant-appellant Larry Urbani (Urbani) pleaded guilty to

conspiracy to commit fraud and was sentenced following that plea to

a term of imprisonment within the guidelines range. He brings this

appeal challenging the government's refusal to move for a downward

departure from the guidelines under U.S.S.G. § 5K1.1 and the

district court's refusal to hold an evidentiary hearing to examine

the extent of his assistance to the government.    We affirm.

                     Facts and Proceedings Below

     On October 18, 1990, Urbani and three others were named in a
forty-one-count     indictment   concerning   a   fraudulent    scheme   of

leasing vending and amusement machines, engaged in by several

related companies of which Urbani was an employee.              Urbani was

named in twenty-seven counts, charging him with conspiring to

commit mail and wire fraud and with the substantive fraud offenses,

in violation of 18 U.S.C. §§ 371, 1341, and 1343.               After the

indictment was handed down, he entered into a plea agreement with

the government.     Under it, Urbani agreed to plead guilty to Count

One   of   the   indictment,   the   conspiracy   count,   to   submit   to

debriefing whenever requested by law enforcement authorities, and

to testify fully and truthfully before a grand jury or at any

trial.     In exchange, the government agreed not to pursue the

remaining counts of the indictment (or other offensesSQexcept

crimes of violence, if anySQrelated to the subject matter of the

investigation leading to the indictment), and to "bring to the

attention of the Court any cooperation rendered to law enforcement

authorities by the defendant."1       The plea agreement expressly and

unequivocally disclaimed, however, any obligation by the government

to file a motion authorizing the district court to depart downward

from the guidelines under U.S.S.G. § 5K1.1 for the defendant's

substantial assistance to the authorities.2           Urbani entered a


1
     It was also agreed that any statements or testimony
furnished by Urbani (or anything derived therefrom) would not be
used against him.
2
      The plea agreement, dated November 29, 1990, stated:

      "However, defendant's cooperation does not
      automatically require the Government to request a
      departure from the sentencing guidelines for
      substantial assistance to the Government. That

                                     2
guilty plea pursuant to this agreement on April 11, 1991.

      Between November 1990 and June 1991, Urbani attended seven

debriefing sessions with the government.           Prior to his scheduled

sentencing on June 26, 1991, Urbani was informed by the Assistant

United States Attorney that a motion from the government for a

section 5K1.1 departure would not be forthcoming.             Sentencing was

continued at Urbani's request to permit him to try to resolve this

disagreement with the government.

      The   presentence     report     (PSR)    calculated     a   guidelines

imprisonment range of twenty-four to thirty months and noted that

"[n]o information has been developed which would indicate an upward

or   downward   departure   from     the   guidelines."      Urbani   did   not

challenge the calculation of the guideline range, but did object to

the PSR on the ground that he was entitled to a section 5K1.1

departure. As described in the probation officer's addendum to the

PSR, Urbani's objection was that "failure to grant a Section 5K1.1

in this circumstance is arbitrary on the part of the Government and

violative of his due process rights."

      The prosecutor did not change his mind about the 5K1.1 motion

during the four-week continuance.          However, on July 23 he did send



      decision will be made by the Government after it
      evaluates the cooperation. If the Government decides
      to file a motion that the Court may depart pursuant to
      Section 5K.1 [sic] of the sentencing guidelines, the
      Government will file a motion at a time determined by
      the Government, and only after the Government evaluates
      the entire cooperation of defendant. . . . The
      defendant further understands that the Government is
      under no obligation whatsoever to file a motion with
      the Court at any time for the departure from the
      Sentencing Guidelines."

                                       3
a letter to the district court describing Urbani's cooperation.

The letter noted that since the plea bargain Urbani had attended

seven meetings with the investigating agents, and in the opinion of

those   agents   had   been   truthful   in   responding   to   questions.

However, the letter also stated that the information provided by

Urbani had largely been known to the government already through

Urbani's co-defendants and through various potential defendants,

who had cooperated in the case before Urbani offered to assist the

government, and through the investigative efforts of the Federal

Bureau of Investigation (FBI), Internal Revenue Service (IRS), and

Federal Trade Commission.      The letter noted that although Urbani's

cooperation further verified certain facts that the government was

relying on in its prosecutions, it came only after he had initially

turned down an offer to cooperate in the early stages of the

investigation and the government had already sufficiently prepared

its case to return an indictment.        For those reasons, the letter

indicated, the government would not move for a departure under

section 5K1.1, but would also not object to the court's imposing a

sentence at the lower end of the guideline range.

     At the sentencing hearing on July 24, 1991, Urbani, through

counsel, reiterated his contention that he was entitled to a

downward departure.     Counsel stated that

     "while we agree at this point with the guidelines as
     suggested in the pre-sentence report, we thank the
     Government for the letter indicating that they recommend
     a lower end of the guidelines in this case, we believe,
     Your Honor, that there is evidence to present to the
     Court that indicates that our client is entitled to a
     downward departure under the 5K1.1. . . . The United
     States Government and defense disagree from a factual
     standpoint whether our client is entitled to that."

                                    4
He requested an evidentiary hearing on this matter and permission
to subpoena the FBI and IRS agents to whom he had provided

information.   The district court accepted Urbani's contention that

it had authority, even in the absence of a 5K1.1 motion from the

government, to examine whether he was entitled to such a departure,

but noted that whether or not to hold a              hearing remained a

discretionary matter for the district court. The court declined to

follow the course suggested by Urbani, choosing instead to rely on

the PSR, on the government's letter of July 23, and on any

information Urbani wished to provide orally at the sentencing

hearing. Through his counsel Urbani informed the court that he had

attended meetings totaling twenty to thirty hours, and that the

information he had provided had enabled the government to recover

valuable assets and had aided its ongoing investigations into other

crimes.     The government simply replied that its position was

adequately outlined in the July 23 letter.           The district court

imposed a sentence of twenty-five months' imprisonment.

     In a motion for reconsideration dated August 2, 1991, Urbani

again asked the district court to exercise its discretion to hold

a hearing on his entitlement to a section 5K1.1 reduction, or

"[a]lternatively" to conduct such a hearing "to determine whether

the government   has   not   acted   in   an   arbitrary   and   capricious

manner."3   This motion was denied as moot.


3
     In a brief filed below in support of this motion, the
passing and wholly unelaborated-on comment is made that the
government "dishonored the plea agreement." That contention was
not previously raised, and has not been raised on appeal. It is
therefore abandoned. Moreover, the record contains absolutely no
evidence, nor any factual allegations or elaborations, tending to
support that contention.

                                     5
     Urbani brings this appeal challenging the government's refusal

to move for a departure under section 5K1.1 and the district

court's denial of an evidentiary hearing.

                                 Discussion

     U.S.S.G. § 5K1.1 (policy statement) provides that "[u]pon

motion of the government stating that the defendant has provided

substantial assistance in the investigation or prosecution of

another person who has committed an offense, the court may depart

from the guidelines."      In considering the constraints, if any, on

the government's decision whether or not to file a motion under

this section,      we   must   begin   with   the   Supreme   Court's   recent

decision in Wade v. United States, 60 U.S.L.W. 4389 (1992).                  In

Wade, the Supreme Court considered district courts' authority to

review a prosecutor's refusal to file a motion under 18 U.S.C. §

3553(e), which authorizes a district court, upon motion of the

government, to impose a sentence less than a statutory minimum in

recognition   of    the   defendant's      substantial   assistance     to   the

government. Although the present case does not involve a statutory

minimum sentence and thus implicates only section 5K1.1 and not

section 3553(e),4 the Supreme Court in Wade indicated that the

principles it announced were applicable to both sections.5


4
     18 U.S.C. § 371, to which Urbani pleaded guilty, limits
sentences to no more than five years, but does not impose a
minimum limit.
5
     The guideline range for Wade's drug offenses was 97 to 121
months' imprisonment, but the pertinent statute required a ten-
year minimum sentence. Apparently because the guidelines do not
authorize a sentence below any statutorily mandated minimum, see
U.S.S.G. § 5G1.1(c)(2), the Supreme Court observed that Wade's
claim of entitlement to a motion allowing the court to depart

                                       6
      Like Urbani, Wade argued based solely on the extent of his

assistance to the government that the government's refusal to move

for a downward departure was arbitrary and hence violative of his

constitutional rights. The Court first observed that the guideline

provision and the statute condition a court's authority to depart

on a motion from the government, but that this arrangement itself

does not limit the government's discretion to decide whether to

make such a motion in a particular case.         See Wade, 60 U.S.L.W. at

4390 ("[I]n both § 3553(e) and § 5K1.1 the condition limiting the

court's authority gives the Government a power, not a duty, to file

a motion when a defendant has substantially assisted.").            Rather,

the Court noted, this decision by the government is reviewable only

on the same basis as other discretionary decisions by a prosecutor:

district courts may grant relief "if they find that the refusal was

based on an unconstitutional motive" such as the defendant's race

or religion.       Id.    The Court made plain, though, that absent a

substantial threshold showing of such a constitutionally improper

motive, district courts lack authority to scrutinize the level of

the defendant's cooperation and interpose their own assessment of

its value.    Moreover, this limited scope of review forecloses even

the   need   for   an    evidentiary   hearing   solely   to   document   the

defendant's assistance:       "It follows that a claim that a defendant

merely provided substantial assistance will not entitle a defendant



below 120 months on these charges "implicates both 18 U.S.C. §
3553(e) and USSG § 5K1.1." Wade, 60 U.S.L.W. at 4390. The Court
further noted that the parties had argued the case on the premise
that in such a situation "the two provisions pose identical and
equally burdensome obstacles." Id.

                                       7
to a remedy or even to discovery or an evidentiary hearing."         Id.6

     Urbani's contentions cannot survive the framework established

by the Supreme Court in Wade.      He has not at any point alleged an

illicit motivation underlying the government's refusal to request

a 5K1.1 departure.       The entirety of his argument, both to this

Court and to the district court, has been that given his level of

cooperation with the government, withholding a 5K1.1 motion was

arbitrary and without justification.        Thus, it is exactly the type

of   claimSQi.e.,   "a   claim   that   a   defendant   merely   provided

substantial assistance"SQthat Wade indicates is unavailing and does

not warrant an evidentiary hearing.

     The standard applicable to other discretionary prosecutorial

decisions, with which the Wade Court equated the decision to file

a 5K1.1 motion, see supra, confirms this view. Decisions regarding

whom to prosecute are committed to the government's discretion

unless "'deliberately based upon an unjustifiable standard such as

race, religion, or other arbitrary classification,' including the

exercise of protected statutory and constitutional rights."        Wayte

v. United States, 105 S.Ct. 1524, 1531 (1985) (citations omitted)

(quoting Bordenkircher v. Hayes, 98 C.Ct. 663, 668 (1978)) (cited


6
     This holding by the Court clarifies an issue to which we
referred in a 1989 opinion sustaining section 5K1.1 against a
challenge that, by requiring a motion by the government, it
failed to implement the statutory directive to reflect the
appropriateness of taking into account a defendant's assistance
to the government. In that case we stated that section 5K1.1
"obviously does not preclude a district court from entertaining a
defendant's showing that the government is refusing to recognize
such substantial assistance." United States v. White, 869 F.2d
822, 829 (5th Cir.) (per curiam), cert. denied, 109 S.Ct. 3172
(1989). See also United States v. Paden, 908 F.2d 1229, 1234
(5th Cir. 1990), cert. denied, 111 S.Ct. 710 (1991).

                                    8
at   Wade,   60    U.S.L.W.   at    4390).         Likewise,    the    prosecutor's

discretion    in    selecting      the   criminal     statute    under       which   to

prosecute is subject only to the limitation that the decision not

involve deliberate discrimination against a class of defendants.

United   States     v.   Batchelder,          99   S.Ct.   2198,      2204    (1979);

Bordenkircher v. Hayes, 98 S.Ct. 663, 668-69 (1978).

      Under the principle expressed in these cases, although a

defendant might conceivably state grounds for relief by alleging

that refusal to move for a departure under section 5K1.1 was

"arbitrary" because it was based on his membership in an identified

group, or on some specified characteristic, that the government has

no possibly legitimate grounds for treating in a discriminatory

manner, Urbani's unadorned allegation of general arbitrariness must

fail. It contains no suggestion that the government's decision was

based on such a constitutionally suspect reason.                   Absent any such

suggestion, it is difficult to see how his claim indicates anything

more than his disagreement with the government's decision and an

invitation to the district court to similarly disagree, which is

exactly the type of judicial oversight that Wade, through its

adoption of the Wayte standard, forbids as overly intrusive on the

prosecution's broad discretion.

      We understand the Supreme Court to have been reiterating this

basic distinction in stating that "Wade would be entitled to relief

if the prosecutor's refusal to move was not rationally related to

any legitimate Government end."           Wade, 60 U.S.L.W. at 4391 (citing

Chapman v. United States, 111 S.Ct. 1919 (1991)).                  Any inclination

to give this statement broader meaning, so as to encompass Urbani's

                                          9
claim, is foreclosed not only by the preceding discussion in the

Supreme Court's opinion but by the facts of the Wade case.                   In

response to Wade's argument, which was evidently identical in

substance to Urbani's, the district court ruled that it had no

power to impose a sentence below the statutory minimum without a

motion from the government and no authority to inquire into the

government's motives for not filing a motion.            Despite qualifying

that approach somewhat by clarifying that district courts are

authorized to inquire into the government's motives to the limited

extent   of   ensuring   that    the    decision   was   not   driven   by    a

constitutionally forbidden purpose, the Supreme Court found no

obstacle to affirming Wade's sentence, because on its face Wade's

claim did not raise such an issue.            The Court thus by necessary

implication held that Wade's contentions were sufficiently removed

from ones that could state a claim to render harmless a denial of

a hearing, even though the denial was possibly based on the

district   court's   overly     restrictive    understanding    of   its   own

authority.

     In the present case, by contrast, the district court assumed

that it did have authority to consider the evidence of Urbani's

cooperation in deciding whether to depart, yet chose to rely on the

government's letter and on the statements made at the sentencing

hearing.      The district court's view of its authority was, if

anything, too broad according to the subsequent pronouncements in

Wade. Therefore, its refusal to conduct an evidentiary hearing was

not based on an incorrect view of the law, but was essentially a



                                       10
decision based on the allegations before it.7        Even more than in

Wade,   therefore,   the   district    court's   decision   cannot   have

constituted an abuse of discretion.

                              Conclusion

     Because under the Supreme Court's Wade decision prosecutorial

decisions to grant or withhold a motion under section 5K1.1 are

insulated from challenge on the grounds raised by Urbani, he is

entitled to no relief from the government's refusal to make such a

motion, and the district court did not err in declining to hold an

evidentiary hearing to examine the extent of Urbani's assistance.

The district court's sentence is therefore

                                                               AFFIRMED.




7
     We also observe that there was apparently little, if any,
specific factual dispute about Urbani's cooperation; the
government did not contest Urbani's counsel's statements at the
sentencing hearing, and Urbani has not expressly challenged any
factual particulars of the account given in the government's July
23 letter, either to the district court or to this Court.

                                  11
