United States v. Nelson

MEMORANDUM

Darren Nelson appeals the 65 month sentence following his conviction for possession of a controlled substance with intent to deliver; conspiracy to distribute a controlled substance; and manufacture of marijuana. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review de novo, United States v. Bailey, 139 F.3d 667, 667 (9th Cir.1998), and we affirm.

Nelson contends that the district court erred by concluding that it could not depart below the five year statutory minimum for possession with intent to distribute a controlled substance without a motion by the government pursuant to 5K1.1. This contention lacks merit as the Su *646 preme Court has previously determined that in the absence of a motion for downward departure made pursuant to 5K1.1 and 18 U.S.C. § 3553 (e), a district court lacks the authority to depart below a statutory minimum. Melendez v. United States, 518 U.S. 120, 125-26 , 116 S.Ct. 2057 , 135 L.Ed.2d 427 (1996).

Nelson also contends that the district court erred by failing to order the government to file a substantial assistance motion. A district court may only review the government’s discretionary decision whether to file a motion for…