### The Honorable Fernando J. Gaitan, Jr., Un ited States District 1 

### Judge for the Western District of Missouri. ____________ 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 th e United Sta tes District Court for the Western District of Missouri upon a 1 plea of g uilty entered on November 28, 1994, to one count of possessio n with intent to distribute 50 grams or more of a substance containin g cocaine base, in viol ation 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 assessm ent 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

### -2-

dist rict 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) e rred in denying his motion for a downward depart ure 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, th e manager of the Courtyard Marriott Hotel in Kansa s City, Missouri, reported to the police what appeared to be suspicious act ivity 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 checke d those telephone numbers and determined that several of them corresponded with in dividuals who had been charged with narcotics violations. Th e police checked the re cords for "Anthony Johnigan" and found that he had a conviction for posses sion of crack, an outstanding warrant for his arrest for violating his parole, and three outstanding arrest warrants for traffi c violations in Kansas City.

On January 24, 1994, upon learning that Johnigan had inquired about tran sportation from the hotel to the Kansas City airport, the polic e surveilled the hotel courtesy van and observed Johnigan leaving the hotel with an unknown femal e. At the airport, Johnigan purchased a ticket with cash, and then he and his female companion proce eded 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, an d the ticket was issued to the same name. She gave the officers permission to

### A check of local records showed that a "Randy McIntosh" had 2 

### an arrest for a narcotics violation, disposition unknown.
-3- 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 wit h Johnigan separately, and he complied. When asked for his name, Johnigan initiall y identified himself as Randy McIntosh. However, after th e 2 officer indicated that Brewer had identified him as Anthony, he admitted his real n ame was Anthony Johnigan. Johnigan was placed under arres t purs uant to the outstanding warrants against him, and he was given a Miranda warning. The officers conducted a pat-d own search of Johnigan and found $3,666.00 in cash and Johnigan's hotel room key. When asked fo r 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 sta te 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 wome n repres enting herself as Johnigan's mother attempted to gain access t o 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 r oom. Law enforcement officers executed the search warrant an d found, among other things, three plastic baggies containing a tan, rocklike substance (later analyzed to contain cocain e base) in the hotel room.

The next day, January 25, 1994, a criminal complaint was file d 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

### -4-

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

On April 2 8, 1994, Johnigan changed his plea from not guilty t o guilty. He entered his guilty plea in the district court based upon a wri tten plea agreement with the government. The plea agreement stated , among other things:

"Sub stantial assistance" within the meaning o f Sen tencing Guidelines § 5K1.1 has been provided by th e defenda nt. The government shall file a motion prior to sen tencing in this case requesting the Court to reduc e the sentence defendant would otherwise receive unde r Sentenc ing Guidelines § 5K1.1. The government reserves the right to request a reduction g enerally or a specific sentence or sentence reduction.

Bri ef for Appellant, Addendum at 12 (Plea Agreement ¶ 9). Anothe r paragraph of the plea agreement stated:

The pa rties agree under § 3E1.1(b) of th e Sentencing Guidelines that a three-point reduction fo r acceptance of responsibility is appropriate based o n [J ohnigan's] timely notice of [his] intent to plea d guilty and timely providing information to th e government concerning his involvement in this matter.

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

Appro ximately one month after Johnigan's April 28, 1994, ple a hearing, his appointe d attorney from the Federal Public Defender's Office
was re lieved at Johnigan's request, and new counsel was appointed

. Johnigan subsequently asked for permission to withdraw his guilty plea, an d permission was granted. The district court judge who had presided a t Johnigan's change of plea hearing then

### -5-

recus ed himself from the case, and the cause was reassigned to anothe r judge.

On November 28, 1994, the date on which Johnigan's jury trial wa s scheduled to begin, J ohnigan, through his newly appointed attorney, filed

a motion to suppress evidence and informed the district court of his desir e to again change his plea from not guilty to guil ty. At that point, no new plea agreement had be en entered into between Johnigan and the government. A second change of plea hearing was held, at which Johnigan himsel f specif ically acknowledged to the district court that the prior ple a agreement, including the provisions related to acceptance of responsibilit y and substantial assistance, was no longer enforceable against th e government. Tr. of C hange of Plea Hearing (Nov. 28, 1994) at 12-15. The di strict court accepted Johnigan's guilty plea, conditioned upon th e court's consideration of Johnigan's motion to suppress.
Initially, a magistrate judge considered Johnigan's motion t o sup press. Following an evidentiary hearing, the magistrate judg e recommended that the motion be denied. United States v. Johnigan , slip op

. at 12 (May 24, 1995) (magistrate judge's report and recommendation ) (h ereinafter "Report and Recommendation"). The district court full y 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 presentenc e 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 obje ction. At sentencing, the district court declin ed 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

### By contrast, in connection with the plea agreement, th e 3 

### government had been prepared to recommend a sentence of ten years based upon Johnigan's substantial assistance. See Tr. of Ch ange of Plea Hearing (Apr. 28, 1994) at 24.
-6- the government had acted irrationally in withholding a § 5K1.1 motion. Th e district court declin ed 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 car eer offender enhancement), and a guidelines range of 360 months to life. The district court sentence d Johniga n to the minimum sentence under the guidelines, 360 months, plu s 3 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 seize d upon exec ution of the search warrant, the statements he made at th e airport, and the cash found on his person after his arrest at the airport should all be suppres sed as fruits of an illegal investigatory stop which

was not based upon a reasonable and articulable suspicion of crimina l act ivity, as required by Terry v. Ohio , 392 U.S. 1 (1968) ( Terry )

. Joh nigan argues that, although the airport stop initially may have bee n
consens ual, it became nonconsensual once the officers displayed thei r ba dges, identified themselves as police officers, separated him fro m 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

### The government responds by arguing that "pretext" i s 4 

### ordinarily an argument used in traffic stop cases. In any event, the go vernment correctly points out, the airport stop in th e present case could not have be en unlawfully pretextual because the off icers were legally authorized to stop Johnigan based on thei r belief that he had outstanding arrest warrants. Brief for A ppellee 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, an y additional "underlying intent or motivation" does no t inva lidate the stop.'" (quoting United States v. Bloomfield , 4 0 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 , 17 74 (1996) (constitutional reasonableness of traffic stops doe s not de pend on the actual motivations of the individual officer s involved).
-7- the ai rport stop was pretextual. He contends that the officers stoppe d 4 himbecause they were really looking for an opportunity to find drugs on his person, not because he had outstanding arrest warrants; if the rea l
reason for the stop was his outstanding arrest warrants, he argues, th e officers could have a rrested 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 deter minations of reasonable suspicion and probable cause should b e reviewed de novo on appeal." Ornelas v. United States , 116 S. Ct. 1657, 1663 (1996). However, the Court further stated that "a reviewing cour t should take care both to review findings of hist orical fact only for clear
error and to give due weight to inferences drawn from those facts b y 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 th e com munity; likewise a police officer views the fact s through the lens of his [or her] police experience an d exp ertise. The background facts provide a context fo r the historical facts, and when seen together yiel d inferences that deserve deference.

### -8-

Id.

In the present case, we review the magistrate judge's findings o f fac t and conclusions of law regarding Johnigan's motion to suppress, a s 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 ex pressed agreement to speak with [one of the officers]." Report and Recomme ndation, slip op. at 9-10. In any event, the magistrate judge concluded, even if an investigatory sto p did take place, the officers had a reasonable suspicion that the individua l they stopped at the airport was wanted in connec tion with a felony because they were aware that a person by the name of Ant hony 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, 22 9 (19 85) ("if police have a reasonable suspicion, founded in specific an d articulabl e facts, that a person they encounter was involved in or i s wanted in connection with a completed felony, then a Terry stop may be mad e to investigate that suspicion")). The magistrate judge also found that th e scope of the detention was not unconstitutionally broad because th e office rs used the least intrusive means reasonably available to achiev e their goal of ascertaining Johnigan's true identity, after which the y immediately arrested him pursuant to his outstan ding warrants. Id. at 10- 11 (citing Florida v. Royer , 460 U.S. 491, 500 (1983) ("the investigatory methods employed shou ld be the least intrusive means reasonably available to verify or dispel t he officer's suspicion in a short period of time")). As to Johnigan's statements made prior to his ar rest, the magistrate judge found that the officers did not compel him to an swer their questions. Id. at 11. The magistrate judge further determined that the search of hi s 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,

### Because we hold that there was probable c ause for the search, 5 

### 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- 586 (8th Cir. 1993) ("[p]olice may conduct a warrantless search incident to a lawful arrest, even absent probable cause or reasonable articulable suspi cion"), cert. denied , 114 S. Ct. 1121 (1994)). Finally, th e magist rate judge concluded that, because the officers acted lawfully i n stoppi ng and questioning Johnigan, arresting him, and seizing his cash , there was probable cause for the state court jud ge 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 wit h the ultimate conclusions that: at the time of the airport stop, the officers reasonably suspected Johniga n of having engaged in felonious conduct; the officers did no t exceed their authorit y in questioning, arresting, and searching Johnigan; and the issuance of the search warrant for the h otel room was supported by probable cause. Moreover, contrary to Johnigan's other arguments, th e 5 officers were not req uired 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 (8t h Cir. 1986) ("[n]o Miranda warning is necessary for persons detained for a Terry stop"). Nor were t he officers required, upon lea rning of Johnigan's outstanding arrest warrants, to arrest hi m 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 n o constitutional right to be arrested and there is no requirement that law enfo rcement officers must effectuate an arrest immediately upo n establishing probable cause). Thus, we hold that the district court did not err in denying Johnigan's motion to suppress.

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

### (a) If the defendant clearly demonstrates acceptanc e of responsibility for his [or her] offense , decrease the offense level by 2 levels. (b) If the defendant qualifies for a decrease unde r subsection (a), the offense level determined prior to the operation of subsection (a) is level 16 or greater, and the defendant has assiste d authorities in the investigation or prosecution of his [or her] own misconduct by taking one of th e following steps: (1) timely providin g complete information to the government concerning his [or her] ow n involvement in the offense;

. . . . dec rease the offense level by 1 additional level.
-10- Denial of downward adjustment for acceptance of responsibility
Johnigan also argues that the district court committed clear error in fai ling to find that he "clearly demonstrat[ed] acceptance o f responsibility for his offense" and in failing to additionally find that he "timely provid[ed] complete information to the government concerning hi s own involvement in the offense." U.S .S.G. § 3E1.1. Thus, he argues that 6 he should have receiv ed a two-level downward adjustment for acceptance of resp onsibility, under § 3E1.1(a), and an additional one-level downwar d 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 coul d
no lo nger enforce the plea agreement once he withdrew his first guilt y plea. He also concedes that the district court's finding regarding hi s acceptance of responsibility is

### -11-

entitled to great deference on review. Neverthe less, he argues, a finding of clear error is jus tified in the present case because he twice admitted his guil t and, prior to his first guilty plea, he provided timel y information about his involvement in the underlying offense and even helpe d to arrange a drug tra nsaction in California. In support of his position, Johnigan also cites the commentary to the guidelines, which indicates that , in rar e situations, a defendant may be deemed to have accepte d respon sibility if, for example, the defendant admits the factua l allegations underlying the charge but pursues a trial in order to challeng e 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 commentar y because he withdrew his first guilty plea only to preserve his Fourt h Amendme nt challenge to the airport stop and the subsequent hotel roo m search -- a challenge which Johnigan claims his first appointed attorney failed to consider de spite his repeated requests. Brief for Appellant at 17 (citing Tr. of Cha nge of Plea Hearing (Nov. 28, 1994) at 33-35; Tr. of Sentenci ng (Oct. 6, 1995) at 26-28). Johnigan also relies on th e dissenting opinion in United States v. Passmore , 984 F.2d 933, 940 (8t h Cir. 1993) (McMillian, J., dissenting), expressing the view that, where th e defendant initially started to withdraw his guilty plea but then changed his m ind and, consequently, the presentence investigation repor t 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 findin g that J ohnigan had not accepted responsibility within the meaning o f 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

### After Johnigan made this statement, the district cour t 7 

### dire cted defense counsel to inquire further, at which poin t Johnigan then admitted the fac tual basis of the charge to which he was pleading guilty. Tr. of Change of Plea Hearing (Nov. 28 , 1994) at 25-28.
-12- (1993). In the present case, the district court observed at Johnigan' s sentencing hearing th at there was scant support for Johnigan's acceptance of responsibility argument "other than the fact that he pled guilty an d obviated the need for trial, though not entirely because we have gone . .

. at leas t once through the pro[cess] of impaneling a jury to try th e case." Tr. of Senten cing (Oct. 6, 1995) at 25. Thus, the district court declin ed to give Johnigan a downward adjustment for acceptance o f responsibility.

"[W]het her a defendant has accepted responsibility is a factua l question which depends largely on credibility assessments by the sentencin g 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 asses s 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 distric t court's finding. See, e.g. , Tr. of Change of Pl ea Hearing (Nov. 28, 1994) at 24 (where Johnigan, at his second change of p lea hearing, stated on the record: "The reason why I got arrested, I was a black male in a hotel doin g 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 hav e left it in the hotel. My fingerprints would have been all over th e place."). Moreover, information contained in the PSR regardin g statements

7 mad e by Johnigan to the probation officer supports the district court' s conclusion that Johnigan did not genuinely accept

### In it s brief on appeal, the government relies on a lette r 8 

### Johnig an allegedly wrote to the district court judge who ha d accepted his first guilty plea. In that letter, Johnigan al legedly claimed he was innocent. No such letter appears in the record on appeal, however, and we therefore do not consider it. U.S.S.G. § 5K1.1 provides in pertinent part: 9 

### Upon m otion of the government stating that th e de fendant has provided substantial assistance i n the investigation or p rosecution of another person who has committed an o ffense, the court may depart from the guidelines.
-13- responsibility for hi s 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. Ordinarily, 9 the district court la cks authority to depart downward pursuant to § 5K1.1 absent a government motion. United States v. Ke lly , 18 F.3d 612, 617 (8th Cir. 1994). However, there are exceptions to th is general rule. See Wade

v. United States , 504 U.S. 181, 185-86 (1992) (federal district courts hav e authority to review a prosecutor's refusal to file a substantial-assistanc e motion and to grant a remedy if the government's refusal was based on an
uncons titutional motive or was not rationally related to any legitimat e government end); Kell y , 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 ba sed 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 th e distr ict court's attention to Paragraph 9 of the plea agreement at th e sentencing hearing, he sufficiently demonstrated to the district court the irrationality of the government's refusal to

### -14-

bring a § 5K1.1 motion. See Tr. of Sentencing (Oct. 6, 1995) at 1 7 (defen se counsel's reference to statement in the plea agreement tha t cooperation had been provided). Johnigan suggests that, notwithstanding the unenforceability of the plea agreement, that document proved to th e distric t court that "'[s]ubstantial assistance' within the meaning o f Sentencing Guidelines § 5K1.1 ha[d] been provided by the defendant." Brie f for Appellant, Addend um at 12 (Plea Agreement ¶ 9). Moreover, he asserts in this appeal, at the first change of plea hear ing, 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 cas e" and later stated "with the assistance that he has provided to the Government, with respect to others engaged in narcoti c traff icking, it is my intent to file a 5K1 motion to allow the Court t o depa rt below the Sentencing Guideline range." Tr. of Change of Ple a Hearing (Apr. 28, 199 4), at 23-24, 26. Johnigan now maintains that these statements made by the prosecutor belie her late r 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, Johniga n argues, because he did provide substantial assistance to the government, from which the govern ment benefited, it was irrational for the prosecutor not to move for a downward departure.

In Wade , the Supreme Court held that

a c laim that a defendant merely provided substantia l assistance will not entitle a defendant to a remedy o r even to discovery or an evidentiary hearing. Nor would ad ditional but generalized allegations of imprope r motive. . . . [A] defendant has no right to discover y 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

### Not ably, the district court judge who presided at th e 1 

### sentencing hearing was not the judge who had presided at th e April 28, 1994, change of plea hearing.
-15- only i f the defendant makes a 'substantial threshold showing' o f pros ecutorial discrimination or irrational conduct." United States v

. Romsey , 97 5 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 th e defendant makes a substantial threshold showing that the refusal was based on an unconstitutiona l motive or that the refusal was irrational"), cert. denied , 114 S. Ct. 2111 (1994).
Johnig an raised the issue of a downward departure based upo n substantial assistanc e at the sentencing hearing. Brief for Appellant at 9, 27 (citing Tr. of Sentencing (Oct. 6, 1995) at 15-18). At that time, th e written statement in the plea agreement acknowledging Johnigan' s
coo peration was brought to the district court's attention, but the ora l statements made by the prosecutor at the first c hange of plea hearing were not. Upon consideration of this issue, the district court judge note d

1 that, although he understood why Johnigan felt entitled to a departur e based upon the plea agreement, that agreement had been nullified as a result o f Johnigan's withdrawal of his first guilty plea. Tr. o f Sent encing (Oct. 6, 1995) at 24. We hold that, under the facts of th e present case, the district court acted appropriately in disregarding the plea agreement. The district court also noted that the government ha d expressed the view th at the assistance provided by Johnigan turned out to be unreliable. Id. Indeed, contrary to Johnigan's claim that hi s assist ance had been beneficial to the government, the governmen t specifically described his assistance as having negative value. Therefore , upon review, we conclude that Johnigan did not make a substantial threshol d showing to the district court that the governmen t's ground for withholding a § 5K1.1 motion was

### -16-

not rationally relate d 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 i s affirmed.

A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.