The Honorable Richard G. Kopf, United States District Judge 1

for the District of Nebraska.

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No. 96-3089

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Rodney G. Kinnison, also known * [UNPUBLISHED]

as Hank Kinnison, *

*

Appellant. *

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 Submitted: December 26, 1996

 Filed: January 2, 1997

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Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.

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PER CURIAM.

Rodney G. Kinnison appeals the 60-month sentence he received after

pleading guilty to conspiring to distribute and possess with intent to

distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a) and 846.

Kinnison contends the government’s refusal to move for a downward departure

was irrational, and thus the district court erred in not departing

1

downward. We affirm.

In the written plea agreement, the government agreed to move for a

downward departure under U.S. Sentencing Guidelines Manual § 5K1.1 (1995)

and/or 18 U.S.C. § 3553(e) (1994) (permitting departure below statutory

minimum) if it determined Kinnison had provided substantial assistance in

the investigation or prosecution of one or more persons. At sentencing,

the government recommended
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the five-year statutory minimum and declined to move for a downward

departure at that time because Kinnison’s assistance had not yet been

"substantial": his attempts to set up a buy were unsuccessful, and most of

the individuals about whom he provided information had already been

sentenced. The government acknowledged that Kinnison had provided some

corroborating evidence that led, in part, to one indictment, but stated he

might still be called to testify in that case. Kinnison asserted that he

had provided substantial assistance and that the government’s assessment

was arbitrary. The district court concluded that Kinnison had not made a

substantial threshold showing that the government’s refusal to move for a

downward departure was irrational.

A district court may depart downward for substantial assistance

without a government motion only when "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) (quoting Wade

v. United States, 112 S. Ct. 1840, 1844 (1992)). We agree with the

district court that Kinnison failed to make such a showing, as his

arguments amounted to nothing more than disagreement over whether his

assistance was substantial, see id. (mere claim that defendant provided

substantial assistance does not entitle him to remedy or evidentiary

hearing), and the government’s conclusion that Kinnison had not yet

provided substantial assistance was not irrational, cf. United States v.

Davila, 964 F.2d 778, 786 (8th Cir.) (desire to cooperate is not same as

substantial assistance), cert. denied, 506 U.S. 964 (1992). We note that

the government has until July 1997 to file a motion under Federal Rule of

Criminal Procedure 35(b) to reduce Kinnison’s sentence based on postsentencing substantial assistance.

The cases Kinnison relies on do not help him. See United States v.

Dixon, 998 F.2d 228, 231 (4th Cir. 1993) (noting that government conceded

substantiality of assistance); United States v.
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Torres, 33 F.3d 130, 132-33 (1st Cir. 1994) (concluding that it was not

irrational to withhold departure motion from lower-level drug-ring member

who tried to assist but had nothing to offer), cert. denied, 115 S. Ct. 767

(1995). Furthermore, the record does not support Kinnison’s contention

that the government would have moved for a downward departure only if he

had provided information resulting in a conviction. 

Accordingly, the judgment of the district court is affirmed.

A true copy.

Attest:

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