                                 ____________

                                  No. 95-3606
                                 ____________


United States of America,             *
                                      *
                  Appellee,           *
                                      *
      v.                              *
                                      * Appeal from the United States
Anthony L. Johnigan, also             * District Court for the
known as Ricky Andre Johnigan,        * Western District of Missouri
also known as Randy McIntosh,         *
also known as Anthony Lamont          *
Johnigan,                             *
                                      *
                  Appellant.          *

                                 ____________

                    Submitted:    March 12, 1996

                        Filed:     July 24, 1996
                                 ____________

Before McMILLIAN, BEAM and HANSEN, Circuit Judges.
                              ____________


McMILLIAN, Circuit Judge.


      Anthony L. Johnigan appeals from a final judgment entered in the
United States District Court for the Western District of Missouri1 upon a
plea of guilty entered on November 28, 1994, to one count of possession
with intent to distribute 50 grams or more of a substance containing
cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A).     Johnigan
was sentenced to 360 months in prison, five years of supervised release,
and a special assessment of $50.00.    United States v. Johnigan, No. 4:94-
00024-1 (W.D. Mo. Oct. 6, 1995) (judgment).     For reversal, Johnigan argues
that the




     1
     The Honorable Fernando J. Gaitan, Jr., United States District
Judge for the Western District of Missouri.
district court (1) erred in denying his motion to suppress evidence;
(2) clearly erred in finding that he had not accepted responsibility for
purposes of applying U.S.S.G. § 3E1.1; and (3) erred in denying his motion
for a downward departure based upon substantial assistance under U.S.S.G.
§ 5K1.1.   For the reasons discussed below, we affirm.


                                Background


      The underlying facts are summarized as follows.   In January 1994, the
manager of the Courtyard Marriott Hotel in Kansas City, Missouri, reported
to the police what appeared to be suspicious activity involving one of the
hotel guests, registered under the name of Anthony Johnigan, with a home
address in Hercules, California.   The manager reported, for example, that
Johnigan carried very large sums of cash on him, paid for his room in cash
on a daily basis, and made numerous telephone calls to various numbers in
California and the inner city area of Kansas City.       The police checked
those telephone numbers and determined that several of them corresponded
with individuals who had been charged with narcotics violations.        The
police checked the records for "Anthony Johnigan" and found that he had a
conviction for possession of crack, an outstanding warrant for his arrest
for violating his parole, and three outstanding arrest warrants for traffic
violations in Kansas City.


      On January 24, 1994, upon learning that Johnigan had inquired about
transportation from the hotel to the Kansas City airport, the police
surveilled the hotel courtesy van and observed Johnigan leaving the hotel
with an unknown female.   At the airport, Johnigan purchased a ticket with
cash, and then he and his female companion proceeded toward the gate area.
At that time, two law enforcement officers approached them.     The female,
who identified herself as Jody Brewer, had identification in that name, and
the ticket was issued to the same name.   She gave the officers permission
to




                                    -2-
search her two carry-on bags, in which no contraband was found.     She then
walked away.      Meanwhile, one of the officers had asked to speak with
Johnigan separately, and he complied.      When asked for his name, Johnigan
initially identified himself as Randy McIntosh.2         However, after the
officer indicated that Brewer had identified him as Anthony, he admitted
his real name was Anthony Johnigan.        Johnigan was placed under arrest
pursuant to the outstanding warrants against him, and he was given a
Miranda warning.    The officers conducted a pat-down search of Johnigan and
found $3,666.00 in cash and Johnigan's hotel room key.       When asked for
permission to search the hotel room, Johnigan told the officers to get a
search warrant.


      The police secured the hotel room while one of the law enforcement
officers applied for a search warrant from a state court judge.   After the
officer had prepared his affidavit in support of the warrant application,
but before the state court judge ruled on the application, a women
representing herself as Johnigan's mother attempted to gain access to
Johnigan's hotel room, purportedly to recover Johnigan's personal items.
This information was orally conveyed to the state court judge.     That same
day, the state court judge issued a warrant for the search of Johnigan's
hotel room.    Law enforcement officers executed the search warrant and
found, among other things, three plastic baggies containing a tan, rock-
like substance (later analyzed to contain cocaine base) in the hotel room.



      The next day, January 25, 1994, a criminal complaint was filed
charging Johnigan with possession with the intent to distribute 50 grams
or more of a substance containing cocaine base.      On February 24, 1994, a
federal grand jury in the Western District of




     2
      A check of local records showed that a "Randy McIntosh" had
an arrest for a narcotics violation, disposition unknown.

                                     -3-
Missouri indicted Johnigan on the same charge.       Johnigan initially entered
a plea of not guilty.


       On April 28, 1994, Johnigan changed his plea from not guilty to
guilty.     He entered his guilty plea in the district court based upon a
written plea agreement with the government.          The plea agreement stated,
among other things:


             "Substantial assistance" within the meaning of
       Sentencing Guidelines § 5K1.1 has been provided by the
       defendant. The government shall file a motion prior to
       sentencing in this case requesting the Court to reduce
       the sentence defendant would otherwise receive under
       Sentencing Guidelines § 5K1.1. The government reserves
       the right to request a reduction generally or a specific
       sentence or sentence reduction.


Brief for Appellant, Addendum at 12 (Plea Agreement ¶ 9).                   Another
paragraph of the plea agreement stated:


             The parties agree under § 3E1.1(b) of the
       Sentencing Guidelines that a three-point reduction for
       acceptance of responsibility is appropriate based on
       [Johnigan's] timely notice of [his] intent to plead
       guilty and timely providing information to the
       government concerning his involvement in this matter.


Id. at 10-11 (Plea Agreement ¶ 7).     The plea agreement also provided "[i]f
defendant fails to keep any promise in this agreement, the government, at
its option, may: . . . void the entire agreement and reinstate the original
charges."    Id. at 13 (Plea Agreement ¶ 11).


       Approximately one month after Johnigan's April 28, 1994, plea
hearing, his appointed attorney from the Federal Public Defender's Office
was   relieved   at   Johnigan's   request,   and   new   counsel   was   appointed.
Johnigan subsequently asked for permission to withdraw his guilty plea, and
permission was granted.       The district court judge who had presided at
Johnigan's change of plea hearing then




                                       -4-
recused himself from the case, and the cause was reassigned to another
judge.


      On November 28, 1994, the date on which Johnigan's jury trial was
scheduled to begin, Johnigan, through his newly appointed attorney, filed
a motion to suppress evidence and informed the district court of his desire
to again change his plea from not guilty to guilty.               At that point, no new
plea agreement had been entered into between Johnigan and the government.
A second change of plea hearing was held, at which Johnigan himself
specifically acknowledged to the district court that the prior plea
agreement, including the provisions related to acceptance of responsibility
and   substantial   assistance,       was    no    longer     enforceable     against    the
government.   Tr. of Change of Plea Hearing (Nov. 28, 1994) at 12-15.                    The
district court accepted Johnigan's guilty plea, conditioned upon the
court's consideration of Johnigan's motion to suppress.


      Initially,    a    magistrate    judge       considered     Johnigan's    motion   to
suppress.      Following    an    evidentiary          hearing,   the    magistrate   judge
recommended that the motion be denied.            United States v. Johnigan, slip op.
at 12 (May 24, 1995) (magistrate judge's report and recommendation)
(hereinafter "Report and Recommendation").                   The district court fully
adopted the magistrate judge's findings of fact and conclusions of law and
denied Johnigan's motion.        Id. (June 8, 1995).


      Upon    receiving    the   probation        officer's    preliminary     presentence
investigation report (PSR), Johnigan objected to its failure to include a
downward    adjustment    for    acceptance       of    responsibility     under   U.S.S.G.
§ 3E1.1.    The government opposed Johnigan's objection.                At sentencing, the
district court declined to find that Johnigan had accepted responsibility
within the meaning of § 3E1.1.         Johnigan also moved pursuant to U.S.S.G.
§ 5K1.1 for a downward departure based upon substantial assistance.
Johnigan argued that




                                            -5-
the government had acted irrationally in withholding a § 5K1.1 motion.   The
district court declined to depart and, consistent with the recommendation
in the PSR, concluded that Johnigan had a total offense level of 37,
criminal history category of VI (including a career offender enhancement),
and a guidelines range of 360 months to life.   The district court sentenced
Johnigan to the minimum sentence under the guidelines, 360 months,3 plus
five years of supervised release and a special assessment of $50.00.
Johnigan appealed.


                                Discussion


Denial of motion to suppress evidence


      Johnigan argues that the district court erred in denying his motion
to suppress evidence.   Specifically, he maintains that the items seized
upon execution of the search warrant, the statements he made at the
airport, and the cash found on his person after his arrest at the airport
should all be suppressed as fruits of an illegal investigatory stop which
was not based upon a reasonable and articulable suspicion of criminal
activity, as required by Terry v. Ohio, 392 U.S. 1 (1968) (Terry).
Johnigan argues that, although the airport stop initially may have been
consensual, it became nonconsensual once the officers displayed their
badges, identified themselves as police officers, separated him from
Brewer, and then -- by their actions and words -- effectively restrained
him without informing him of his right to leave or immediately giving him
a Miranda warning.   He further argues that




       3
        By contrast, in connection with the plea agreement, the
government had been prepared to recommend a sentence of ten years
based upon Johnigan's substantial assistance. See Tr. of Change of
Plea Hearing (Apr. 28, 1994) at 24.

                                   -6-
the airport stop was pretextual.4   He contends that the officers stopped
him because they were really looking for an opportunity to find drugs on
his person, not because he had outstanding arrest warrants; if the real
reason for the stop was his outstanding arrest warrants, he argues, the
officers could have arrested him at the hotel instead of waiting until he
was in the airport, appearing ready to leave the Kansas City area.


      The Supreme Court has recently clarified that "as a general matter
determinations of reasonable suspicion and probable cause should be
reviewed de novo on appeal."   Ornelas v. United States, 116 S. Ct. 1657,
1663 (1996).   However, the Court further stated that "a reviewing court
should take care both to review findings of historical fact only for clear
error and to give due weight to inferences drawn from those facts by
resident judges and local law enforcement officers."   Id.


            A trial judge views the facts of a particular case
      in light of the distinctive features and events of the
      community; likewise a police officer views the facts
      through the lens of his [or her] police experience and
      expertise. The background facts provide a context for
      the historical facts, and when seen together yield
      inferences that deserve deference.




         4
         The government responds by arguing that "pretext" is
ordinarily an argument used in traffic stop cases. In any event,
the government correctly points out, the airport stop in the
present case could not have been unlawfully pretextual because the
officers were legally authorized to stop Johnigan based on their
belief that he had outstanding arrest warrants. Brief for Appellee
at 27 (quoting United States v. Hamby, 59 F.3d 99, 100 (8th Cir.
1995) ("'If the officer is legally authorized to stop the driver,
any additional "underlying intent or motivation" does not
invalidate the stop.'" (quoting United States v. Bloomfield, 40
F.3d 910, 915 (8th Cir. 1994) (en banc), cert. denied, 115 S. Ct.
1970 (1995)))); accord Whren v. United States, 116 S. Ct. 1769,
1774 (1996) (constitutional reasonableness of traffic stops does
not depend on the actual motivations of the individual officers
involved).

                                    -7-
Id.


      In the present case, we review the magistrate judge's findings of
fact and conclusions of law regarding Johnigan's motion to suppress, as
they were adopted in their entirety by the district court.       Following an
evidentiary hearing, the magistrate judge first found that the encounter
between the officers and Johnigan at the airport was "a purely consensual
encounter based upon the Defendant Johnigan's expressed agreement to speak
with [one of the officers]."   Report and Recommendation, slip op. at 9-10.
In any event, the magistrate judge concluded, even if an investigatory stop
did take place, the officers had a reasonable suspicion that the individual
they stopped at the airport was wanted in connection with a felony because
they were aware that a person by the name of Anthony Johnigan (the name he
had used at the hotel) had outstanding arrest warrants in California and
Kansas City.   Id. at 10 (citing United States v. Hensley, 469 U.S. 221, 229
(1985) ("if police have a reasonable suspicion, founded in specific and
articulable facts, that a person they encounter was involved in or is
wanted in connection with a completed felony, then a Terry stop may be made
to investigate that suspicion")).   The magistrate judge also found that the
scope of the detention was not unconstitutionally broad because the
officers used the least intrusive means reasonably available to achieve
their goal of ascertaining Johnigan's true identity, after which they
immediately arrested him pursuant to his outstanding warrants.    Id. at 10-
11 (citing Florida v. Royer, 460 U.S. 491, 500 (1983) ("the investigatory
methods employed should be the least intrusive means reasonably available
to verify or dispel the officer's suspicion in a short period of time")).
As to Johnigan's statements made prior to his arrest, the magistrate judge
found that the officers did not compel him to answer their questions.    Id.
at 11.   The magistrate judge further determined that the search of his
person, which produced a large sum of cash, was a lawful search incident
to Johnigan's arrest.   Id. (citing United States v. Horne, 4 F.3d 579,




                                    -8-
586 (8th Cir. 1993) ("[p]olice may conduct a warrantless search incident
to a lawful arrest, even absent probable cause or reasonable articulable
suspicion"),          cert.    denied,    114   S.     Ct.   1121    (1994)).         Finally,    the
magistrate judge concluded that, because the officers acted lawfully in
stopping and questioning Johnigan, arresting him, and seizing his cash,
there was probable cause for the state court judge to issue the warrant to
search Johnigan's hotel room.              Id. at 11-12.


        Upon de novo review, giving due weight to the magistrate judge's
historical findings and inferences, we agree with the ultimate conclusions
that: at the time of the airport stop, the officers reasonably suspected
Johnigan of having engaged in felonious conduct; the officers did not
exceed their authority in questioning, arresting, and searching Johnigan;
and the issuance of the search warrant for the hotel room was supported by
probable cause.5           Moreover, contrary to Johnigan's other arguments, the
officers were not required to give Johnigan a Miranda warning at the time
they were questioning him prior to his arrest.                    United States v. McGauley,
786 F.2d 888, 890 (8th Cir. 1986) ("[n]o Miranda warning is necessary for
persons detained for a Terry stop").                 Nor were the officers required, upon
learning         of   Johnigan's    outstanding        arrest       warrants,    to    arrest     him
immediately while he was still at the hotel, rather than at the airport.
Hoffa       v.    United      States,    385    U.S.    293,      310   (1966)   (there     is     no
constitutional right to be arrested and there is no requirement that law
enforcement           officers    must    effectuate         an     arrest   immediately         upon
establishing probable cause).              Thus, we hold that the district court did
not err in denying Johnigan's motion to suppress.




        5
     Because we hold that there was probable cause for the search,
we need not address the applicability of the good faith exception
to the exclusionary rule, see United States v. Leon, 468 U.S. 897
(1984), raised by both Johnigan and the government on appeal.

                                                 -9-
Denial of downward adjustment for acceptance of responsibility


        Johnigan also argues that the district court committed clear error
in   failing     to   find   that    he   "clearly   demonstrat[ed]    acceptance    of
responsibility for his offense" and in failing to additionally find that
he "timely provid[ed] complete information to the government concerning his
own involvement in the offense."          U.S.S.G. § 3E1.1.6    Thus, he argues that
he should have received a two-level downward adjustment for acceptance of
responsibility, under § 3E1.1(a), and an additional one-level downward
adjustment      for   providing     complete   information,    under   §   3E1.1(b)(1).
Johnigan concedes that the paragraph in the plea agreement, referring to
his acceptance of responsibility, was advisory and, in any case -- as he
acknowledged at his change of plea hearing on November 28, 1994 -- he could
no longer enforce the plea agreement once he withdrew his first guilty
plea.       He also concedes that the district court's finding regarding his
acceptance of responsibility is




        6
         U.S.S.G. § 3E1.1 provides in pertinent part:

        (a)     If the defendant clearly demonstrates acceptance
                of responsibility for his [or her] offense,
                decrease the offense level by 2 levels.

        (b)     If the defendant qualifies for a decrease under
                subsection (a), the offense level determined prior
                to the operation of subsection (a) is level 16 or
                greater,   and    the   defendant   has   assisted
                authorities in the investigation or prosecution of
                his [or her] own misconduct by taking one of the
                following steps:

                (1)    timely providing complete information to the
                       government concerning his [or her] own
                       involvement in the offense;

                       . . . .

                decrease the offense level by 1 additional level.

                                           -10-
entitled to great deference on review.           Nevertheless, he argues, a finding
of clear error is justified in the present case because he twice admitted
his   guilt and, prior to his first guilty plea, he provided timely
information about his involvement in the underlying offense and even helped
to arrange a drug transaction in California.              In support of his position,
Johnigan also cites the commentary to the guidelines, which indicates that,
in    rare    situations,      a   defendant   may   be   deemed    to   have     accepted
responsibility        if,    for   example,    the   defendant     admits   the    factual
allegations underlying the charge but pursues a trial in order to challenge
the constitutionality of a statute or the application of a statute to the
admitted conduct.       U.S.S.G. § 3E1.1, comment. (n.2).         Johnigan argues that
his circumstances are analogous to the example cited in the commentary
because he withdrew his first guilty plea only to preserve his Fourth
Amendment challenge to the airport stop and the subsequent hotel room
search -- a challenge which Johnigan claims his first appointed attorney
failed to consider despite his repeated requests.                Brief for Appellant at
17 (citing Tr. of Change of Plea Hearing (Nov. 28, 1994) at 33-35; Tr. of
Sentencing (Oct. 6, 1995) at 26-28).                  Johnigan also relies on the
dissenting opinion in United States v. Passmore, 984 F.2d 933, 940 (8th
Cir. 1993) (McMillian, J., dissenting), expressing the view that, where the
defendant initially started to withdraw his guilty plea but then changed
his    mind    and,    consequently,     the    presentence      investigation      report
recommended both an upward adjustment for obstruction of justice and a
downward adjustment for acceptance of responsibility, it was appropriate
to remand for resentencing with directions that the district court state
its reasons for denying the defendant a downward adjustment for acceptance
of responsibility.


       On appeal, we review for clear error the district court's finding
that Johnigan had not accepted responsibility within the meaning of
U.S.S.G. § 3E1.1.           United States v. Furlow, 980 F.2d 476, 478 (8th Cir.
1992) (en banc), cert. denied, 508 U.S. 914




                                          -11-
(1993).        In the present case, the district court observed at Johnigan's
sentencing hearing that there was scant support for Johnigan's acceptance
of responsibility argument "other than the fact that he pled guilty and
obviated the need for trial, though not entirely because we have gone . .
. at least once through the pro[cess] of impaneling a jury to try the
case."    Tr. of Sentencing (Oct. 6, 1995) at 25.          Thus, the district court
declined       to   give   Johnigan   a   downward   adjustment   for   acceptance   of
responsibility.


         "[W]hether a defendant has accepted responsibility is a factual
question which depends largely on credibility assessments by the sentencing
court."    United States v. Flores, 959 F.2d 83, 87 (8th Cir.), cert. denied,
506 U.S. 976 (1992).        "A sentencing judge is in a unique position to assess
the appropriateness of an adjustment for acceptance of responsibility.
This determination is entitled to great deference . . . and should not be
disturbed unless it is without foundation."           Id. at 88 (citations omitted).
We hold, in the present case, that there was ample support for the district
court's finding.       See, e.g., Tr. of Change of Plea Hearing (Nov. 28, 1994)
at 24 (where Johnigan, at his second change of plea hearing, stated on the
record: "The reason why I got arrested, I was a black male in a hotel doing
nothing illegal with my girlfriend, and I don't see what's wrong with that.
. . .    They didn't catch me.        If it was mine, I tell you I would never have
left it in the hotel.            My fingerprints would have been all over the
           7
place.").       Moreover, information contained in the PSR regarding statements
made by Johnigan to the probation officer supports the district court's
conclusion that Johnigan did not genuinely accept




           7
        After Johnigan made this statement, the district court
directed defense counsel to inquire further, at which point
Johnigan then admitted the factual basis of the charge to which he
was pleading guilty. Tr. of Change of Plea Hearing (Nov. 28, 1994)
at 25-28.

                                           -12-
responsibility for his acts.    We therefore hold that the district court's
finding was not clearly erroneous.8


Denial of downward departure based upon substantial assistance


      Lastly, Johnigan argues that the district court erred in denying his
motion for a downward departure pursuant to U.S.S.G. § 5K1.1.9   Ordinarily,
the district court lacks authority to depart downward pursuant to § 5K1.1
absent a government motion.    United States v. Kelly, 18 F.3d 612, 617 (8th
Cir. 1994).   However, there are exceptions to this general rule.   See Wade
v. United States, 504 U.S. 181, 185-86 (1992) (federal district courts have
authority to review a prosecutor's refusal to file a substantial-assistance
motion and to grant a remedy if the government's refusal was based on an
unconstitutional motive or was not rationally related to any legitimate
government end); Kelly, 18 F.3d at 617-18 (exceptions to the general rule
are permitted where the defendant shows that the government's refusal to
bring a motion was based on an unconstitutional motive or was irrational,
or that the motion was withheld in bad faith).


      In the present case, Johnigan maintains that, by directing the
district court's attention to Paragraph 9 of the plea agreement at the
sentencing hearing, he sufficiently demonstrated to the district court the
irrationality of the government's refusal to




         8
       In its brief on appeal, the government relies on a letter
Johnigan allegedly wrote to the district court judge who had
accepted his first guilty plea. In that letter, Johnigan allegedly
claimed he was innocent. No such letter appears in the record on
appeal, however, and we therefore do not consider it.
     9
      U.S.S.G. § 5K1.1 provides in pertinent part:

      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.

                                     -13-
bring a § 5K1.1 motion.     See Tr. of Sentencing (Oct. 6, 1995) at 17
(defense counsel's reference to statement in the plea agreement that
cooperation had been provided).   Johnigan suggests that, notwithstanding
the unenforceability of the plea agreement, that document proved to the
district court that "'[s]ubstantial assistance' within the meaning of
Sentencing Guidelines § 5K1.1 ha[d] been provided by the defendant."   Brief
for Appellant, Addendum at 12 (Plea Agreement ¶ 9).   Moreover, he asserts
in this appeal, at the first change of plea hearing, the prosecutor stated
"I told Mr. Johnigan that based on his endeavor to provide us assistance,
and assistance thereafter provided, that I would recommend a sentence of
ten years in this case" and later stated "with the assistance that he has
provided to the Government, with respect to others engaged in narcotic
trafficking, it is my intent to file a 5K1 motion to allow the Court to
depart below the Sentencing Guideline range."       Tr. of Change of Plea
Hearing (Apr. 28, 1994), at 23-24, 26.    Johnigan now maintains that these
statements made by the prosecutor belie her later claims at the sentencing
hearing that the assistance he had provided was unreliable and of negative
value.   See Tr. of Sentencing (Oct. 6, 1995) at 22-23.     Thus, Johnigan
argues, because he did provide substantial assistance to the government,
from which the government benefited, it was irrational for the prosecutor
not to move for a downward departure.


      In Wade, the Supreme Court held that


      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. . . . [A] defendant has no right to discovery
      or an evidentiary hearing unless he [or she] makes a
      "substantial threshold showing."


504 U.S. at 186 (citations omitted).   Following Wade, this court explained
"a prosecutor's discretionary decision may be challenged




                                   -14-
only    if       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); accord United States v.
Lewis, 3 F.3d 252, 255 (8th Cir. 1993) (per curiam) ("[a] prosecutor's
refusal to file a substantial-assistance motion is reviewable only when the
defendant makes a substantial threshold showing that the refusal was based
on an unconstitutional motive or that the refusal was irrational"), cert.
denied, 114 S. Ct. 2111 (1994).


        Johnigan         raised   the   issue   of     a   downward    departure    based   upon
substantial assistance at the sentencing hearing.                     Brief for Appellant at
9, 27 (citing Tr. of Sentencing (Oct. 6, 1995) at 15-18).                         At that time,
the written statement in the plea agreement acknowledging Johnigan's
cooperation was brought to the district court's attention, but the oral
statements made by the prosecutor at the first change of plea hearing were
not.1    Upon consideration of this issue, the district court judge noted
that, although he understood why Johnigan felt entitled to a departure
based upon the plea agreement, that agreement had been nullified as a
result   of Johnigan's withdrawal of his first guilty plea.                             Tr. of
Sentencing (Oct. 6, 1995) at 24.                 We hold that, under the facts of the
present case, the district court acted appropriately in disregarding the
plea agreement.           The district court also noted that the government had
expressed the view that the assistance provided by Johnigan turned out to
be unreliable.            Id.      Indeed, contrary to Johnigan's claim that his
assistance         had    been    beneficial     to    the    government,    the    government
specifically described his assistance as having negative value.                      Therefore,
upon review, we conclude that Johnigan did not make a substantial threshold
showing to the district court that the government's ground for withholding
a § 5K1.1 motion was




             1
        Notably, the district court judge who presided at the
sentencing hearing was not the judge who had presided at the
April 28, 1994, change of plea hearing.

                                                -15-
not rationally related to any legitimate government end.   Accordingly, we
hold that the district court properly denied Johnigan's motion for a
downward departure.


                                 Conclusion


      For the foregoing reasons, the judgment of the district court is
affirmed.


      A true copy.

            Attest:

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




                                   -16-
