[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 98-1319
UNITED STATES OF AMERICA,
Appellee,
v.
JOHN DOE,
Defendant Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
[Hon. Daniel R. Dominguez, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
Frank D. Inserni, by appointment of the court, on brief for
appellant.
Guillermo Gil, United States Attorney, Nelson Perez-Sosa,
Assistant United States Attorney, and Jose A. Quiles-Espinosa,
Senior Litigation Counsel, on brief for the United States.
October 14, 1998
Per Curiam. In the district court, the defendant
challenged the government's refusal to move for a downward
departure under U.S.S.G. 5K1.1. The defendant made no colorable
claim that the refusal to depart was based on an unconstitutional
motive; instead, he asserted only that he had supplied sufficient
assistance to the government to require a departure motion. This
does not avail in the face of a plea agreement that explicitly
preserved to the government "the sole discretion" to decide whether
to file a motion for departure based on substantial assistance.
See Loc. R. 27.1.
Affirmed.