NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10406

Plaintiff-Appellee, D.C. No. 1:16-cr-00038-1

v.

MEMORANDUM*

COLEEN RENEE REYES,

Defendant-Appellant.

Appeal from the United States District Court for the District of Guam Frances M. Tydingco-Gatewood, District Judge, Presiding

Submitted May 18, 2021**

Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.

Coleen Renee Reyes appeals from the district court’s judgment and

challenges the 97-month sentence imposed following her jury-trial conviction for

attempted possession of methamphetamine with intent to distribute, in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), and 846. We have jurisdiction under 28

* 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). U.S.C. § 1291, and we affirm.

Reyes contends that the district court should have exercised its authority to

depart downward under U.S.S.G. § 5K1.1. She argues that the government’s

decision not to file a § 5K1.1 motion was intended to punish her for exercising her

Sixth Amendment right to a jury trial and was not rationally related to a legitimate

governmental interest.1 “[T]he district court’s factual findings regarding the

Government’s reasons for refusing to file a § 5K1.1 motion are reviewed for clear

error.” United States v. Flores, 559 F.3d 1016, 1019 (9th Cir. 2009).

The government explained at sentencing that the information Reyes

provided after her trial was not timely or beneficial. The government substantiated

that assertion, and the record does not support Reyes’s claim of an ulterior

improper motive. Accordingly, the district court did not clearly err in finding that

the government’s refusal to file a § 5K1.1 motion was neither unconstitutionally

motivated nor arbitrary. See id. at 1020 (“[W]hether the assistance provided was

actually substantial is a decision that better rests with the prosecutor, not the

court.”). Because the district court could not grant the departure after the

government legitimately declined to move for it, see id. at 1019, the court had no

1 Reyes also argues that the government improperly refused to file a motion under 18 U.S.C. § 3553(e), which governs relief from the mandatory minimum. However, the government did move for safety valve relief under that statute and, as a result, Reyes received a sentence below the otherwise applicable mandatory minimum.

2 19-10406 occasion to consider the § 5K1.1 factors and we need not reach Reyes’s arguments

that the court misunderstood the standard under § 5K1.1 and failed to explain its

reasoning adequately.

AFFIRMED.

3 19-10406