                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 19 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 14-10487

              Plaintiff - Appellee,              D.C. No. 1:11-cr-00581-LEK-1

 v.
                                                 MEMORANDUM*
EDWARD MICHAEL PHILLIPS, aka
Mikey,

              Defendant - Appellant.


                   Appeal from the United States District Court
                              for the District of Hawaii
                   Leslie E. Kobayashi, District Judge, Presiding

                     Argued and Submitted February 12, 2016
                               Honolulu, Hawaii

Before: GRABER, BYBEE, and CHRISTEN, Circuit Judges.

      Defendant Edward Michael Phillips appeals the district court’s denial of his

motion to compel the government to file a motion for further sentencing reduction

under Federal Rule of Criminal Procedure 35(b). We affirm.




        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Having reviewed the entire record, we conclude that the government’s

amended sentencing motion was intended to replace its original sentencing motion

entirely. Accordingly, any statements in the original motion do not bind the

government, even if the statements were otherwise binding. It is clear from the

face of the amended motion that the government did not act in bad faith, arbitrarily,

or for an impermissible reason. Wade v. United States, 504 U.S. 181, 185–87

(1992); United States v. Murphy, 65 F.3d 758, 762 (9th Cir. 1995). It was rational

for the government to conclude that Defendant is not entitled to a further

sentencing reduction; in the interim, the government learned that Defendant had

stolen drugs while a cooperating informant.

      AFFIRMED.




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