United States v. Martha Rosales

FILED
NOT FOR PUBLICATION OCT 03 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-50039

Plaintiff - Appellee, D.C. No. 3:11-cr-02968-LAB

v.
MEMORANDUM *
MARTHA YOLANDA ROSALES,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding

Submitted September 24, 2013 **

Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.

Martha Yolanda Rosales appeals from the district court’s judgment and

challenges the 120-month sentence imposed following her guilty-plea conviction

for importation of methamphetamine, in violation of 21 U.S.C. §§ 952 and 960.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
 Rosales challenges the substantive reasonableness of her mandatory

minimum sentence. She contends that the district court should have compelled the

government to file a motion for a substantial assistance departure under U.S.S.G.

§ 5K1.1. We disagree.

Section 5K1.1 does not impose a duty on the government to move for a

substantial assistance departure. See United States v. Flores, 559 F.3d 1016, 1019

(9th Cir. 2009). Even when a defendant has provided substantial assistance, this

court cannot grant relief “unless the government’s refusal to file a § 5K1.1 motion

was based on impermissible motives, constituted a breach of a plea agreement, or

was not rationally related to a legitimate governmental purpose.” Id. Rosales’s

allegations do not meet this standard.

Because the district court lacked discretion to sentence Rosales below the

mandatory minimum, see United States v. Wipf, 620 F.3d 1168, 1171 (9th Cir.

2010), her substantive reasonableness argument fails.

AFFIRMED.

2 12-50039