UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

No. 98-1238
v.	(D. Colorado)
LAMAINT DUANE WALLIN aka "L",

Defendant - Appellant.	(D.C. No. 97-CR-237-D)

ORDER AND JUDGMENT*

Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Following a guilty plea, Lamaint Duane Wallin was convicted on one count of possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1). Wallin now appeals the district court's denial of the government's motion to depart downward from the United States Sentencing Guidelines pursuant to U.S.S.G. § 5K1.1. He contends that the district court misapplied the guidelines by 1) failing to give proper consideration to the government's evaluation of his cooperation, and 2) basing its refusal on grounds that violate the doctrine of separation of powers. Because we lack jurisdiction to review the district court's discretionary refusal to depart, we dismiss the appeal.

BACKGROUND

During April 1997, a Metro Gang Task Force (metro force) began investigating a cooperating witness's report of drug activities involving Wallin. On June 17, 1997, police executed a search warrant at Wallin's residence and arrested him. At that time, police discovered crack cocaine in Wallin's pocket; additional drugs, drug paraphernalia, and money, as well as a loaded gun, were found in Wallin's bedroom closet. On July 10, 1997, an eight-count federal indictment against Wallin and three codefendants was returned.

Following the denial of his motion to suppress, Wallin agreed to cooperate with the government. In August and September 1997, Wallin met with metro force agents and provided information regarding area drug activity. On November 19, 1997, Wallin and the government signed a Fed. R. Crim. P. 11(e)(1)(C) plea agreement by which Wallin agreed to enter a guilty plea to count five of the indictment, and the government agreed to dismiss the remaining counts against him. R. Vol. I, Tab 77 at ¶¶ 1-2. Pursuant to Rule 11(e)(1)(C), the agreement stipulated a sentence of 108 months as an appropriate disposition of the case, and provided that Wallin would be able to withdraw his plea if the court determined to impose a greater sentence. Id. at ¶ 3. The proposed 108- month sentence was based on the following expressly stated sentencing factors: 1) Wallin's base offense level (after enhancement for firearm possession and reduction for acceptance of responsibility) would be 31, and 2) his criminal history category would be I. Id. at ¶¶ 6-7. The agreement further provided that, if the applicable guideline range exceeded 108 months,1 and if Wallin's cooperation resulted in substantial assistance, the government would file a § 5K1 motion seeking a 108-month sentence. At the plea hearing, the court deferred its acceptance of the plea until the Presentence Investigation Report (PSR) was completed.

Contrary to the parties' expectations, the PSR recommended a two-level enhancement for a supervising role in the offense, and it computed a category III for Wallin's criminal history, resulting in a guideline range of 168 to 210 months. The government sought and received two postponements of the sentencing hearing so that it would have time to pursue its investigations of Wallin's information in order to assess whether or not to file a § 5K1.1 motion.

Although the government ultimately filed the motion, it provided scant support for the § 5K.1.1 requirement of substantial assistance.2 At the sentencing hearing, the court criticized the government's practices, questioned the good faith of the filing, and denied the motion as not well founded.3 However, the court rejected the PSR's recommended role enhancement, so that the resulting sentencing range was from 135 to 168 months. The court then stated its willingness to impose a sentence of 135 months. After a continuance, Wallin decided not to withdraw his plea, and the court sentenced him to 135 months' imprisonment.

DISCUSSION

A district court's discretionary decision not to depart downward from the Sentencing Guidelines is unreviewable. See United States v. Fitzherbert, 13 F.3d 340, 344 (10th Cir. 1993); United States v. Munoz, 946 F.2d 729, 730 (10th Cir. 1991). However, we do have jurisdiction to review a sentence if the district court erroneously concluded that it lacked the authority to depart, see United States v. Rowen, 73 F.3d 1061, 1063 (10th Cir. 1996), or if the district court imposed a sentence which violates the law or incorrectly applies the guidelines, see 18 U.S.C. § 3742(a); United States v. Belt, 89 F.3d 710, 714 (10th Cir. 1996).

Attempting to overcome the jurisdictional bar, Wallin characterizes the court's refusal to depart as a misapplication of the guidelines, contending that the court failed to give proper weight to the government's evaluation that his assistance warranted the motion, and that the court rejected the motion on an improper basis.4 Essentially Wallin argues that the court's approach demonstrated an impermissible intrusion into the government's prosecutorial role in violation of the doctrine of separation of powers. We disagree. Clearly, the court recognized its discretion to depart. Unpersuaded by the motion itself, the court repeatedly sought assurances from the government that might cast a more positive light on the motion. However, it simply found the government's answers unavailing. In this case, the court clearly considered the departure request, and in its discretion, determined that there was insufficient basis for a departure. In these circumstances, we find no misapplication of the guidelines.

DISMISSED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge