United States v. John Doe

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                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 18 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    15-50284

                Plaintiff-Appellee,             D.C. No. 3:14-cr-03601-H

 v.
                                                MEMORANDUM *
JOHN DOE,

                Defendant-Appellant.

                  Appeal from the United States District Court
                      for the Southern District of California
                 Marilyn L. Huff, Senior District Judge, Presiding

                             Submitted May 11, 2017**
                               Pasadena, California

Before: PREGERSON and FRIEDLAND, Circuit Judges, and DONATO,***
District Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
      Defendant-appellant John Doe1 appeals a three-year mandatory minimum

sentence imposed after he pleaded guilty to bringing in an illegal alien for financial

gain and aiding and abetting in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 18

U.S.C. § 2. Doe contends that the government arbitrarily refused to file a motion

for substantial assistance under 18 U.S.C. § 3553(e) after a debriefing meeting with

him. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and

we affirm.

      Without a motion by the government, the district court ordinarily lacks

authority to grant a reduction of a mandatory minimum sentence for substantial

assistance. United States v. Treleaven, 35 F.3d 458, 460 (9th Cir. 1994). The

government’s refusal to seek a reduction for substantial assistance is not

reviewable unless it was motivated by constitutionally suspect reasons such as a

defendant’s race or religion, constituted a breach of the plea agreement, or was

arbitrary and not rationally related to a legitimate government purpose. Id. at 461.

To obtain review or an evidentiary hearing, a defendant must make a “substantial

threshold showing” on one or more of these grounds that consists of more than just

“generalized allegations” of impropriety. Wade v. United States, 504 U.S. 181,

186 (1992); see also United States v. Flores, 559 F.3d 1016, 1020 (9th Cir. 2009).



1
 Defendant's unopposed motions to be referred to under a pseudonym are granted.
United States v. Doe, 655 F.2d 920, 922 n.1 (9th Cir. 1980).

                                          2
      Doe does not allege an unconstitutional motive behind the government’s

decision or that it breached a duty under the plea agreement. Nor has he shown

that the government’s decision was arbitrary, irrational or made in bad faith. The

government clearly stated to the district court that it had declined to bring a

substantial assistance motion because it did not believe that Doe had been

cooperative or truthful at the debriefing meeting. Doe does not contest his lack of

cooperation and the district court did not err in accepting the government’s

explanation as satisfactory. See Flores, 559 F.3d at 1020 (“[w]hether the

assistance provided was actually substantial is a decision that better rests with the

prosecutor, not the court.” (citing United States v. Burrows, 36 F.3d 875, 884 (9th

Cir. 1994))).

      AFFIRMED.




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