972 F. 2d 1344 - United States v. Desalla
972 F2d 1344 United States v. Desalla
972 F.2d 1344
UNITED STATES of America, Plaintiff-Appellee,
v.
Artemio DESALLA, a/k/a "Boy", Defendant-Appellant.
No. 89-10618.
United States Court of Appeals, Ninth Circuit.
Submitted July 27, 1992.*
Decided Aug. 3, 1992.
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Before EUGENE A. WRIGHT, FARRIS and BEEZER, Circuit Judges.
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MEMORANDUM**
We agree with DeSalla that the issue here is not the reviewability of the government's refusal to move for a downward departure but rather whether the government met its obligations under the plea agreement. We are satisfied that it did.
The agreement makes clear that the government retained full discretion to refuse to move for a downward departure:
[T]he prosecution may move the court to depart below the Guidelines.... [T]he decision as to whether to make such a request or motion is entirely up to the prosecution.... This Agreement does not require the prosecution to make such a request or motion, but the defendant's assistance will be considered.... This Agreement confers neither any right upon the Defendant to have the prosecution make such a request or motion, nor any remedy to Defendant in the event the prosecution fails to make such a request or motion.
Memorandum of Plea Agreement, p 20. It is hard to imagine more unequivocal language.
DeSalle must show the government acted in bad faith before we could sustain his challenge, and this he has failed to do. At his sentencing, his part in the agreement had not been completed, as both he and the government acknowledge. The government's action in deferring a decision on whether to seek a downward departure conformed both to the terms of the plea agreement and the requirements of good faith.
The government has now moved for a downward departure, pursuant to Rule 35. DeSalla insists that unless the court holds a hearing on the motion and allows DeSalla to participate, his due process rights will be violated. This claim is not ripe.
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The judgment of sentence is AFFIRMED. This cause is REMANDED for the limited purpose of allowing the district court to resolve the government's pending Rule 35 motion. This panel retains jurisdiction in the event of another appeal.