MEMORANDUM**

Nobalene Winston appeals her sentence, following her guilty plea for two counts of distribution and possession with intent to distribute cocaine, in violation of 21 U.S.C. Sec. 841(a)(1). Winston argues that the district court erred by failing to consider, absent a motion of the government, her alleged assistance to the government for purposes of departing below the mandatory minimum sentence of ten years. Winston argues the government motion prerequisite operated to deprive her of due process under the Constitution. We have jurisdiction under 28 U.S.C. Sec. 1291 and affirm the sentence.

We review de novo the district court's interpretation of 18 U.S.C. Sec. 3553(e) and its decision to disregard Winston's request for departure based on such interpretation. See United States v. Ayarza, 874 F.2d 647, 652 (9th Cir.), cert. denied, 110 S.Ct. 847 (1990).

The district court may be required to sentence an individual convicted under 21 U.S.C. Sec. 841 to a mandatory minimum term in prison. See e.g. 21 U.S.C. Sec. 841(b)(1)(A). The sentencing court may depart below a statutory mandatory term only upon motion of the government "so as to reflect a defendant's substantial assistance in the investigation or prosecution of another...." 18 U.S.C. Sec. 3553(e); see Ayarza, 874 F.2d at 752.1

Winston contends that, despite the plain language of the section 3553(e), the district court's ultimate authority to determine whether a defendant has provided sufficient "substantial assistance" to warrant a departure is not dependent on a government motion. Rather, Winston argues the government is required to file a "motion" describing the defendant's cooperation to the district court even if it does not believe departure is warranted. Winston does not offer legal support for her position, and there is none. Section 3553(e) explicitly conditions a departure below the mandatory minimum on motion of the government recommending such a departure. See Ayarza, 874 F.2d at 653. The provision makes no suggestion that the government, "in close cases," is required to provide a description of the defendant's conduct.

Here, Winston pled guilty to drug offenses in violation of 21 U.S.C. Sec. 841(a)(1), which carried a mandatory minimum sentence of ten years in prison pursuant to 21 U.S.C. Sec. 841(b)(1)(A). She did not enter any plea agreements with the government. Winston entered a sentencing agreement with the government which required her to cooperate with the government in the investigation of related drug activity. In exchange, the government agreed to advise the district court of the quality and value of her cooperation. The sentencing agreement explicitly stated that a motion for downward departure would be in the sole discretion of the government. The government refused to move for a departure pursuant to section 3553(e) because Winston's information did not produce favorable results.

Absent a motion of the government, the district court did not have the authority to depart below the mandatory minimum term. Thus, it properly construed its authority by refusing to address Winston's request for departure. See Ayarza, 874 F.2d at 653.

Finally, Winston's due process argument also lacks merit. "[S]ection 3553 ... [is] not unconstitutional insofar as [it] allow[s] only the Government to seek a departure from the minimum mandatory sentence to reflect a defendant's 'substantial assistance.' " Id.

AFFIRMED.