United States v. Rodney G. Kinnison

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No. 96-3089
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Rodney G. Kinnison, also known * [UNPUBLISHED]
as Hank Kinnison, *
*
Appellant. *
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Submitted: December 26, 1996
Filed: January 2, 1997
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Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.
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PER CURIAM.
Rodney G. Kinnison appeals the 60-month sentence he received after
pleading guilty to conspiring to distribute and possess with intent to
distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a) and 846.
Kinnison contends the government’s refusal to move for a downward departure
was irrational, and thus the district court1 erred in not departing
downward. We affirm.
In the written plea agreement, the government agreed to move for a
downward departure under U.S. Sentencing Guidelines Manual § 5K1.1 (1995)
and/or 18 U.S.C. § 3553(e) (1994) (permitting departure below statutory
minimum) if it determined Kinnison had provided substantial assistance in
the investigation or prosecution of one or more persons. At sentencing,
the government recommended
1
The Honorable Richard G. Kopf, United States District Judge
for the District of Nebraska.
the five-year statutory minimum and declined to move for a downward
departure at that time because Kinnison’s assistance had not yet been
"substantial": his attempts to set up a buy were unsuccessful, and most of
the individuals about whom he provided information had already been
sentenced. The government acknowledged that Kinnison had provided some
corroborating evidence that led, in part, to one indictment, but stated he
might still be called to testify in that case. Kinnison asserted that he
had provided substantial assistance and that the government’s assessment
was arbitrary. The district court concluded that Kinnison had not made a
substantial threshold showing that the government’s refusal to move for a
downward departure was irrational.
A district court may depart downward for substantial assistance
without a government motion only when "the defendant makes a `substantial
threshold showing' of prosecutorial discrimination or irrational conduct."
United States v. Romsey, 975 F.2d 556, 557-58 (8th Cir. 1992) (quoting Wade
v. United States, 112 S. Ct. 1840, 1844 (1992)). We agree with the
district court that Kinnison failed to make such a showing, as his
arguments amounted to nothing more than disagreement over whether his
assistance was substantial, see id. (mere claim that defendant provided
substantial assistance does not entitle him to remedy or evidentiary
hearing), and the government’s conclusion that Kinnison had not yet
provided substantial assistance was not irrational, cf. United States v.
Davila, 964 F.2d 778, 786 (8th Cir.) (desire to cooperate is not same as
substantial assistance), cert. denied, 506 U.S. 964 (1992). We note that
the government has until July 1997 to file a motion under Federal Rule of
Criminal Procedure 35(b) to reduce Kinnison’s sentence based on post-
sentencing substantial assistance.
The cases Kinnison relies on do not help him. See United States v.
Dixon, 998 F.2d 228, 231 (4th Cir. 1993) (noting that government conceded
substantiality of assistance); United States v.
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Torres, 33 F.3d 130, 132-33 (1st Cir. 1994) (concluding that it was not
irrational to withhold departure motion from lower-level drug-ring member
who tried to assist but had nothing to offer), cert. denied, 115 S. Ct. 767
(1995). Furthermore, the record does not support Kinnison’s contention
that the government would have moved for a downward departure only if he
had provided information resulting in a conviction.
Accordingly, the judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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