                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         FEB 1 1999
                                 TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 98-1238
          v.                                           (D. Colorado)
 LAMAINT DUANE WALLIN aka                         (D.C. No. 97-CR-237-D)
 “L”,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Following a guilty plea, Lamaint Duane Wallin was convicted on one count

of possession with intent to distribute crack cocaine in violation of 21 U.S.C.

§ 841(a)(1). Wallin now appeals the district court’s denial of the government’s

motion to depart downward from the United States Sentencing Guidelines

pursuant to U.S.S.G. § 5K1.1. He contends that the district court misapplied the

guidelines by 1) failing to give proper consideration to the government’s

evaluation of his cooperation, and 2) basing its refusal on grounds that violate the

doctrine of separation of powers. Because we lack jurisdiction to review the

district court’s discretionary refusal to depart, we dismiss the appeal.



                                  BACKGROUND

      During April 1997, a Metro Gang Task Force (metro force) began

investigating a cooperating witness’s report of drug activities involving Wallin.

On June 17, 1997, police executed a search warrant at Wallin’s residence and

arrested him. At that time, police discovered crack cocaine in Wallin’s pocket;

additional drugs, drug paraphernalia, and money, as well as a loaded gun, were

found in Wallin’s bedroom closet. On July 10, 1997, an eight-count federal

indictment against Wallin and three codefendants was returned.

      Following the denial of his motion to suppress, Wallin agreed to cooperate

with the government. In August and September 1997, Wallin met with metro


                                         -2-
force agents and provided information regarding area drug activity. On

November 19, 1997, Wallin and the government signed a Fed. R. Crim. P.

11(e)(1)(C) plea agreement by which Wallin agreed to enter a guilty plea to count

five of the indictment, and the government agreed to dismiss the remaining counts

against him. R. Vol. I, Tab 77 at ¶¶ 1-2. Pursuant to Rule 11(e)(1)(C), the

agreement stipulated a sentence of 108 months as an appropriate disposition of

the case, and provided that Wallin would be able to withdraw his plea if the court

determined to impose a greater sentence. Id. at ¶ 3. The proposed 108- month

sentence was based on the following expressly stated sentencing factors: 1)

Wallin’s base offense level (after enhancement for firearm possession and

reduction for acceptance of responsibility) would be 31, and 2) his criminal

history category would be I. Id. at ¶¶ 6-7. The agreement further provided that,

if the applicable guideline range exceeded 108 months, 1 and if Wallin’s

cooperation resulted in substantial assistance, the government would file a § 5K1

motion seeking a 108-month sentence. At the plea hearing, the court deferred its

acceptance of the plea until the Presentence Investigation Report (PSR) was

completed.




      1
       The agreement specifically notes that, if Wallin failed to qualify for the
safety valve provision, the minimum applicable guideline range would be higher
than 108 months. R. Vol. I, Tab 77 at ¶ 7.K.-L.

                                        -3-
      Contrary to the parties’ expectations, the PSR recommended a two-level

enhancement for a supervising role in the offense, and it computed a category III

for Wallin’s criminal history, resulting in a guideline range of 168 to 210

months. The government sought and received two postponements of the

sentencing hearing so that it would have time to pursue its investigations of

Wallin’s information in order to assess whether or not to file a § 5K1.1 motion.

      Although the government ultimately filed the motion, it provided scant

support for the § 5K.1.1 requirement of substantial assistance. 2 At the sentencing

hearing, the court criticized the government’s practices, questioned the good faith



      2
          U.S.S.G. § 5K1.1 p.s. (1997) provides as follows:

      Upon 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.
      (a) The appropriate reduction shall be determined by the court for
      reasons stated that may include, but are not limited to, consideration
      of the following:
             (1) the courts evaluation of the significance and
             usefulness of the defendant’s assistance, taking into
             consideration the government’s evaluation of the
             assistance rendered;
             (2) the truthfulness, completeness, and reliability of any
             information or testimony provided by the defendant;
             (3) the nature and extent of the defendant’s assistance;
             (4) any injury suffered, or any danger or risk of injury
             to the defendant or his family resulting from his
             assistance;
             (5) the timeliness of the defendant’s assistance.

                                         -4-
of the filing, and denied the motion as not well founded. 3 However, the court


      3
       The government’s motion stated that, although it believed Wallin’s
information to be truthful, no arrests had been made and none were anticipated in
the near future. Nonetheless, it summarily indicated its belief that the
information which Wallin provided, though limited in value, was sufficient to
support a request for a sentence of 108 months. R. Vol. I, Tab 109 at ¶ 10.

       The court noted the considerable variance between the ranges anticipated in
the plea agreement and the range recommended in the PSR, as well as the
government’s early indication to the probation officer that it would probably not
file a § 5K1.1 motion. The court then stated:

             Now, you filed a 5K motion just very recently, and the way I
      read this 5K motion, [it] appears to me to be filed for the sole
      purpose of negating the findings [in the PSR]; and I just don’t
      believe that’s a proper purpose of a 5K motion, particularly where
      the motion by its terms acknowledges that this defendant has
      provided you with no useful information, there is no indication that
      you’re going to indict anybody, arrest anybody because of what he’s
      told you, and I want to know what’s going on.

R. Vol. IV at 3-4. The court also stated that

      in other circumstances [I have] granted 5K motions and denied them;
      but I look at them and see if there’s enough there to give me some
      comfort that there has been substantial assistance . . . . But I just
      don’t understand . . . how you can in good faith file this motion and
      ask me to seriously consider it for the purpose of giving Mr. Wallin a
      108-month sentence, so that’s the question which you still have not
      answered to my satisfaction.

Id. at 7-8. When the government indicated that it had been unable to establish
any further particulars because of the time limitation, the court criticized the
filing as premature. Id. at 9.

In conjunction, but expressly “independent of,” its concerns regarding the
motion’s merits, the court indicated its considerable irritation with the
                                                                        (continued...)

                                        -5-
rejected the PSR’s recommended role enhancement, so that the resulting

sentencing range was from 135 to 168 months. The court then stated its

willingness to impose a sentence of 135 months. After a continuance, Wallin

decided not to withdraw his plea, and the court sentenced him to 135 months’

imprisonment.



                                  DISCUSSION

      A district court’s discretionary decision not to depart downward from the

Sentencing Guidelines is unreviewable. See United States v. Fitzherbert, 13 F.3d

340, 344 (10th Cir. 1993); United States v. Munoz, 946 F.2d 729, 730 (10th Cir.

1991). However, we do have jurisdiction to review a sentence if the district court

erroneously concluded that it lacked the authority to depart, see United States v.

Rowen, 73 F.3d 1061, 1063 (10th Cir. 1996), or if the district court imposed a

sentence which violates the law or incorrectly applies the guidelines, see 18

U.S.C. § 3742(a); United States v. Belt, 89 F.3d 710, 714 (10th Cir. 1996).

      Attempting to overcome the jurisdictional bar, Wallin characterizes the

court’s refusal to depart as a misapplication of the guidelines, contending that the


      3
        (...continued)
government’s failure to properly evaluate the sentencing factors prior to entering
into the plea agreement. R. Vol. IV at 8. It also criticized the government’s
uneven handling of cases, id. at 7-8, 10, and characterized the motion as a
“charade” and “bogus,” id. at 7, 11.

                                        -6-
court failed to give proper weight to the government’s evaluation that his

assistance warranted the motion, and that the court rejected the motion on an

improper basis. 4 Essentially Wallin argues that the court’s approach demonstrated

an impermissible intrusion into the government’s prosecutorial role in violation of

the doctrine of separation of powers. We disagree. Clearly, the court recognized

its discretion to depart. Unpersuaded by the motion itself, the court repeatedly

sought assurances from the government that might cast a more positive light on

the motion. However, it simply found the government’s answers unavailing. In

this case, the court clearly considered the departure request, and in its discretion,

determined that there was insufficient basis for a departure. In these

circumstances, we find no misapplication of the guidelines.

      DISMISSED.

                                               ENTERED FOR THE COURT



                                               Stephen H. Anderson
                                               Circuit Judge




      4
        Wallin cites U.S.S.G. § 5K1.1 comment. (n. 3), which provides that
“[s]ubstantial weight should be given to the government’s evaluation of the extent
of the defendant’s assistance, particularly where the extent and value of the
assistance are difficult to ascertain.”

                                         -7-
