United States v. Denair Riley , 642 F. App'x 483 ( 2016 )

Case: 14-31163 Document: 00513456412 Page: 1 Date Filed: 04/07/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-31163
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
April 7, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
DENAIR RILEY,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:11-CR-235-11
Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
Pursuant to a plea agreement, Denair Riley pleaded guilty to conspiracy
to distribute, and to possess with intent to distribute, 280 grams or more of
cocaine base, and 500 grams or more of cocaine hydrochloride, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A) and (B), and 846; and use of a communication
facility (telephone) to facilitate that crime, in violation of 21 U.S.C. § 843(b).
The plea agreement contained, inter alia, a provision that, if Riley cooperated
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
Case: 14-31163 Document: 00513456412 Page: 2 Date Filed: 04/07/2016
No. 14-31163
and provided “substantial assistance”, the Government could, “in its
discretion”, move for a sentence reduction.
At sentencing, the Government declined to exercise that discretion,
citing Riley’s lack of cooperation. The court sentenced him to the statutory
mandatory minimum of 240 months’ imprisonment. In challenging that
sentence, Riley does not contend his plea agreement was unknowing or
involuntary. Instead, he asserts only that the Government breached the
agreement by failing, based on his substantial assistance, to move for a
downward departure. He acknowledges, however, that the Government
retained discretion to move for such a departure.
A court cannot grant a downward departure for substantial assistance
unless the Government so moves. E.g., United States v. Krumnow, 476 F.3d
294, 297 (5th Cir. 2007). “The refusal to move for downward departure is
reviewable only for unconstitutional motivation when [the Government’s] sole
discretion is retained.” United States v. Aderholt, 87 F.3d 740, 743 (5th Cir.
1996). Riley fails to claim an unconstitutional motivation, asserting only that
his refusal to cooperate was because he feared for his safety.
AFFIRMED.
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