Opinion
No. 05-50533.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed January 16, 2007.
Janet Tung, Federal Defenders of San Diego, Inc., San Diego, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California, John S. Rhoades, District Judge, Presiding. D.C. No. CR-05-00555-JSR.
Before: ALARCÓN, HALL, and PAEZ, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Martin De Jesus Gonzalez-Cervantes appeals from the sentence imposed following his guilty-plea conviction for importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Gonzalez-Cervantes contends that the district court erred by failing to exercise its independent discretion to grant a downward departure pursuant to U.S.S.G. § 5K3.1 when the government's refusal to move for a departure was based on an unconstitutional motive. Specifically, Gonzalez-Cervantes contends that the government's failure to move for such a departure based on his refusal to stipulate to removal was unconstitutional because it discriminated against him based on race and nationality or alienage.
Even assuming the district court had independent discretion to grant such a departure, see Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992), Gonzalez-Cervantes failed to demonstrate that the government had an unconstitutional or improper motive for refusing to move for a fast-track departure. See id. at 185-86, 112 S.Ct. 1840; United States v. Espinoza-Cano, 456 F.3d 1126, 1138 (9th Cir. 2006) (noting that a defendant must present objective evidence of an improper motive on the part of the government).