United States v. Gamaliel Carmen-Perez

51 F.3d 282 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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. Gamaliel CARMEN-PEREZ, Defendant-Appellant. No. 94-30235. United States Court of Appeals, Ninth Circuit. Submitted March 10, 1995. * Decided March 28, 1995. Before: PREGERSON, KOZINSKI, and LEAVY, Circuit Judges. 1 MEMORANDUM ** 2 The appellant, Gamaliel Carmen-Perez (Carmen-Perez), appeals his sentence, arguing that he was improperly refused a downward departure motion pursuant to U.S.S.G. Sec. 5K1.1. The appellant also argues that he was prejudiced by ineffective counsel. 3 The appellant argues two exceptions to the general rule that departures for substantial assistance pursuant to Sec. 3553(e) and U.S.S.G. Sec. 5K1.1 may not be made absent a motion by the government. 1 United States v. Ayarza, 874 F.2d 647, 653 (9th Cir.1989). 4 First, Carmen-Perez argues that the district court should have sentenced the defendant below the statutory mandatory minimum on the…