* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 1 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 98-1238

v. (D. Colorado) LAMAINT DUANE WALLIN aka “L”, Defendant - Appellant. (D.C. No. 97-CR-237-D)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.- 2 -

Following a guilty plea, Lamaint Duane Wallin was c onvicted on one count of possession with intent to distribute crack cocai ne 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 Se ntencing Guidelines pursuant to U.S.S.G. § 5K1.1. He contends that the district court misapplied the guidelines by 1) failing to give proper considerati on to the government’s evaluation of his cooperation, and 2) basing its re fusal on grounds that violate the doctrine of separation of powers. Because we lack jurisdiction to review the district court’s discretionary refusal to depart, w e dismiss the appeal.

BACKGROUND During April 1997, a Metro Gang Task Force (metro f orce) began investigating a cooperating witness’s report of dru g activities involving Wallin. On June 17, 1997, police executed a search warrant at Wallin’s residence and arrested him. At that time, police discovered crac k 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 wa s returned. Following the denial of his motion to suppress, Wal lin agreed to cooperate with the government. In August and September 1997, Wallin met with metro1 The agreement specifically notes that, if Wallin fa iled to qualify for the

safety valve provision, the minimum applicable guid eline range would be higher than 108 months. R. Vol. I, Tab 77 at ¶ 7.K.-L. - 3 - force agents and provided information regarding are a drug activity. On November 19, 1997, Wallin and the government signeda Fed. R. Crim. P. 11(e)(1)(C) plea agreement by which Wallin agreed t o enter a guilty plea to count five of the indictment, and the government agreed t o 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 anappropriate 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 state d sentencing factors: 1) Wallin’s base offense level (after enhancement for firearm possession and reduction for acceptance of responsibility) would b e 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 mont hs, 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 h earing, the court deferred its acceptance of the plea until the Presentence Invest igation Report (PSR) was completed.2 U.S.S.G. § 5K1.1 p.s. (1997) provides as follows:

Upon motion of the government stating that the defe ndant has provided substantial assistance in the investigatio n or prosecution of another person who has committed an offense, the co urt may depart from the guidelines. (a) The appropriate reduction shall be determined by the court for reasons stated that may include, but are not limite d 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 assis tance; (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 - Contrary to the parties’ expectations, the PSR reco mmended 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 guide line range of 168 to 210 months. The government sought and received two pos tponements of the sentencing hearing so that it would have time to pu rsue 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 prac tices, questioned the good faith3 The government’s motion stated that, although it be lieved Wallin’s

information to be truthful, no arrests had been mad e and none were anticipated in the near future. Nonetheless, it summarily indicat ed its belief that the information which Wallin provided, though limited i n 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 t he ranges anticipated in the plea agreement and the range recommended in the PSR, as well as the government’s early indication to the probation offi cer 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 defe ndant has provided you with no useful information, there is n o 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 fi le 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 yo u 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 limitat ion, 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 considerab le irritation with the (continued...) - 5 - of the filing, and denied the motion as not well fo unded. 3 However, the court3 (...continued)

government’s failure to properly evaluate the sente ncing 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 - rejected the PSR’s recommended role enhancement, so that the resulting sentencing range was from 135 to 168 months. The c ourt then stated its willingness to impose a sentence of 135 months. Af ter 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 de part 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 di strict court imposed a sentence which violates the law or incorrectly appl ies the guidelines, see 18 U.S.C. § 3742(a); UnitedStates v. Belt , 89 F.3d 710, 714 (10th Cir. 1996). Attempting to overcome the jurisdictional bar, Wall in characterizes the court’s refusal to depart as a misapplication of th e guidelines, contending that the4 Wallin cites U.S.S.G. § 5K1.1 comment. (n. 3), whic h provides that

“[s]ubstantial weight should be given to the govern ment’s evaluation of the extent of the defendant’s assistance, particularly where the extent and value of the assistance are difficult to ascertain.” - 7 - court failed to give proper weight to the government’s evaluation that his assistance warranted the motion, and that the courtrejected the motion on an improper basis. 4 Essentially Wallin argues that the court’s approa ch demonstrated an impermissible intrusion into the government’s pr osecutorial role in violation of the doctrine of separation of powers. We disagree. Clearly, the court recognized its discretion to depart. Unpersuaded by the motio n itself, the court repeatedly sought assurances from the government that might ca st a more positive light on the motion. However, it simply found the government’s answers unavailing. In this case, the court clearly considered the departu re request, and in its discretion, determined that there was insufficient basis for a departure. In these circumstances, we find no misapplication of the gui delines.
DISMISSED.
ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge