United States v. Chad Spencer Smith

21 F.3d 1118 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Chad Spencer SMITH, Defendant-Appellant. No. 93-50591. United States Court of Appeals, Ninth Circuit. Submitted April 8, 1994. * Decided April 13, 1994. 1 Before: BROWNING, PREGERSON, and BRUNETTI, Circuit Judges 2 MEMORANDUM ** 3 I. Downward Departure for Substantial Assistance 4 The district court did not err in failing to depart downward under Sec. 5K1.1 of the Guidelines for substantial assistance. Section 5K1.1 of the Guidelines allows a downward departure for substantial assistance only upon motion of the government, U.S. v. Cueto, 9 F.3d 1438, 1442 (9th Cir.1993), unless the defendant makes a "substantial threshold showing" that the government's refusal to file a motion is "based upon an unconstitutional motive ... or ... not rationally related to any legitimate state objective." U.S. v. Delgado-Cardenas, 974 F.2d 123, 126 (9th Cir.1992); see also Wade v.…