United States v. Ibanez-Teyes ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-3093
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Herlindo Ibanez-Teyes, Herlindo *
Ibanez-Tellez - true spelling of last * [UNPUBLISHED]
name, also known as Carlos, *
*
Appellant. *
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Submitted: March 7, 2000
Filed: March 31, 2000
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Before McMILLIAN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
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PER CURIAM.
Herlindo Ibanez-Teyes pleaded guilty to conspiring to distribute and possess
with intent to distribute methamphetamine, in violation of 21 U.S.C. § 846, and the
district court1 sentenced him to ninety-seven months imprisonment and five years
supervised release. On appeal, Ibanez-Teyes argues that the court erred by not
1
The Honorable Joseph F. Bataillon, United States District Judge for the District
of Nebraska.
compelling the government to file a substantial-assistance downward-departure motion
and by not allowing him to withdraw his plea.
Having carefully reviewed the record, we reject Ibanez-Teyes’s first argument
because he failed to make a substantial threshold showing entitling him to relief. See
United States v. Wilkerson, 179 F.3d 1083, 1086 (8th Cir. 1999) (government’s
discretionary refusal to move for downward departure cannot be challenged unless
defendant makes substantial threshold showing that refusal was in bad faith, irrational,
or based on unconstitutional motive); Wade v. United States, 504 U.S. 181, 186 (1992)
(mere showing that defendant provided substantial assistance, whether standing alone
or coupled with generalized allegations of government’s improper motive, is
insufficient). We do not review Ibanez-Teyes’s second argument because, although he
initially presented his plea-withdrawal request to the district court, he withdrew it
before the court could rule on it. See United States v. Olano, 507 U.S. 725, 733
(1993); United States v. Tulk, 171 F.3d 596, 600 (8th Cir. 1999); United States v.
Gutierrez, 130 F.3d 330, 332 (8th Cir. 1997).
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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