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

### for the District of Nebraska. ___________ No. 96-3089

___________ 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 Rodney G. Kinnison, also known * [UNPUBLISHED] as Hank Kinnison, * * Appellant. *

___________ Submitted: December 26, 1996 Filed: January 2, 1997

___________ Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.

___________
PER CURIAM. RodneyG. Kinnison appeals the 60-month sentence he received afte r pleading guilty to conspiring to distribute and possess with intent t o distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a) and 846. Kinnison contends the government’s refusal to move for a downward departur e wa s irrational, and thus the district court erred in not departin g 1 downward. We affirm.

In the written plea agreement, the government agreed to move for a downward departure un der U.S. Sentencing Guidelines Manual § 5K1.1 (1995) and/or 18 U.S.C. § 3553(e) (1994) (permitting departure below statutor y minimum) if it determ ined 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 downwar d departu re at that time because Kinnison’s assistance had not yet bee n "substantial": his attempts to set up a buy were unsuccessful, and most of the in dividuals about whom he provided information had already bee n senten ced. The government acknowledged that Kinnison had provided som e corroborating evidence that led, in part, to one indictment, but stated he might still be calledto testify in that case. Kinnison asserted that he had provided substantial assistance and that the government’s assessment was arbitrary. The d istrict court concluded that Kinnison had not made a substantial thresholdshowing that the government’s refusal to move for a downward departure was irrational.

Ad istrict court may depart downward for substantial assistanc e without a government motion only when "the defendant makes a `substantial threshold showing' of prosecutorial discriminati on or irrational conduct." United States v. Romsey , 975 F.2d 556, 557-58 (8th Cir. 1992) (quoting Wad e v. United S tates , 112 S. Ct. 1840, 1844 (1992)). We agree with th e dis trict court that Kinnison failed to make such a showing, as hi s argume nts amounted to nothing more than disagreement over whether hi s assist ance was substantial, see id. (mere claim that defendant provide d substa ntial assistance does not entitle him to remedy or evidentiar y hearin g), and the government’s conclusion that Kinnison had not ye t 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 assistanc e), cert. denied , 506 U.S. 964 (1992). We note that the government has un til July 1997 to file a motion under Federal Rule of Crimin al Procedure 35(b) to reduce Kinnison’s sentence based on post

sentencing 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 , 3 3 F.3d 130, 132-33 (1st Cir. 1994) (concluding that it was no t irrational to withhol d departure motion from lower-level drug-ring member who tried to assist but had nothing to offer), cert. denied , 115 S. Ct. 76 7 (1995)
. Furthermore, the record does not support Kinnison’s contentio n 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.