NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v.

JOHN DOE

,

Defendant

- Appellant. No. 1 5

- 50284

D.C. No. 3:14

- cr

- 03601

- H

MEMORANDUM *

Appeal from the United States District Court

for the Southern District of California Marilyn L. Huff

, Senior District Judge, Presiding

Submitted May 11, 2017 * *
Pasadena, California

Before: PREGERSON and FRIEDLAND, Circuit Judges, and DONATO, ** * District Judge.

* This disposition is not appropr iate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable James Donato, U nited States District Judge for the Northern District of California, sitting by designation. 

# FILED

MAY 1 8 2017

MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2 Defendant

- appellant John Doe 1 appeals a three

- year mandatory minimum

sentence imposed after he pleaded guilty to bringing in an illegal alien for financial

gain and aiding and abetting in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18

U.S.C. § 2

. Doe contends that the government arbitrarily refused to file a motion

for substantial assistance under 18 U.S .C. § 3553(e) after a debriefing meeting with

him

. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) , and

we affirm.

Without a motion by the government, the district court ordinarily lacks

authority to grant a reduction of a mandatory minimum sentence for substantial

assistance. United States v. Treleaven , 35 F.3d 458, 460 (9th Cir. 1994). The

government’s refusal to seek a reduction for substantial assistance is not

reviewable unless it was motivated by constitutionally suspect reas ons such as a

defendant’s race or religion

, constituted a breach of the plea agreement, or was

arbitrary and not rationally related to a legitimate gov ernment purpose

. Id . at 461.

To obtain review or an evidentiary hearing, a defendant must make a “substantial

threshold showing” on one or more of these grounds that consists of more than just

“generalized allegations ” of impropriety. Wade v. United States , 504 U.S. 181,

1 86 (1992); see also United States v. Flores , 559 F.3d 1016, 1020 (9th Cir. 2009).

1 Defendant's unopposed motions to be referred to under a pseudonym are granted.

United States v. Doe , 655 F.2d 920, 922 n.1 (9th Cir. 1980)

.3 Doe does not allege an unconstitutional motive b ehind the government’s

decision or that it breached a duty under the plea agreement. Nor has h e shown

that the government’s decision was arbitrary, irrational or made in bad faith. T he

government clearly stated to the district court that it had declined to bring a

substantial assistance motion because it did not believe that Doe had been

cooperative or truthful at the debrief ing meeting. Doe does not contest his lack of

cooperation and the district court did not err in accepting the government’s

explanation as satisfactory

. See Flores , 559 F.3d at 1020 (“ [ w ] hether the

assistance provided was actually substantial is a decision that better rests with the

prosecutor, not the court.” (citing United States v. Burrows , 36 F.3d 875, 884 (9th

Cir. 1994)) )

.

AFFIRMED

.