[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT] United States Court of Appeals For the First Circuit

No. 98-1319

UNITED STATES OF AMERICA,

Appellee,

v.

JOHN DOE,

Defendant Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge] [Hon. Daniel R. Dominguez, U.S. District Judge]

Before

Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge.

Frank D. Inserni, by appointment of the court, on brief for appellant. Guillermo Gil, United States Attorney, Nelson Perez-Sosa, Assistant United States Attorney, and Jose A. Quiles-Espinosa, Senior Litigation Counsel, on brief for the United States.

October 14, 1998

Per Curiam. In the district court, the defendant challenged the government's refusal to move for a downward departure under U.S.S.G. 5K1.1. The defendant made no colorable claim that the refusal to depart was based on an unconstitutional motive; instead, he asserted only that he had supplied sufficient assistance to the government to require a departure motion. This does not avail in the face of a plea agreement that explicitly preserved to the government "the sole discretion" to decide whether to file a motion for departure based on substantial assistance. See Loc. R. 27.1. Affirmed.