United States of America v. Coleen Renee Reyes

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
COLEEN RENEE REYES,
Defendant-Appellant.
No. 19-10406
D.C. No. 1:16-cr-00038-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Guam
Frances M. Tydingco-Gatewood, District Judge, Presiding
Submitted May 18, 2021**
Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.
Coleen Renee Reyes appeals from the district court’s judgment and
challenges the 97-month sentence imposed following her jury-trial conviction for
attempted possession of methamphetamine with intent to distribute, in violation of
21 U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), and 846. We have jurisdiction under 28
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAY 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 19-10406
U.S.C. § 1291, and we affirm.
Reyes contends that the district court should have exercised its authority to
depart downward under U.S.S.G. § 5K1.1. She argues that the government’s
decision not to file a § 5K1.1 motion was intended to punish her for exercising her
Sixth Amendment right to a jury trial and was not rationally related to a legitimate
governmental interest.1 “[T]he district court’s factual findings regarding the
Government’s reasons for refusing to file a § 5K1.1 motion are reviewed for clear
error.” United States v. Flores, 559 F.3d 1016, 1019 (9th Cir. 2009).
The government explained at sentencing that the information Reyes
provided after her trial was not timely or beneficial. The government substantiated
that assertion, and the record does not support Reyes’s claim of an ulterior
improper motive. Accordingly, the district court did not clearly err in finding that
the government’s refusal to file a § 5K1.1 motion was neither unconstitutionally
motivated nor arbitrary. See id. at 1020 (“[W]hether the assistance provided was
actually substantial is a decision that better rests with the prosecutor, not the
court.”). Because the district court could not grant the departure after the
government legitimately declined to move for it, see id. at 1019, the court had no
1 Reyes also argues that the government improperly refused to file a motion under
18 U.S.C. § 3553(e), which governs relief from the mandatory minimum.
However, the government did move for safety valve relief under that statute and, as
a result, Reyes received a sentence below the otherwise applicable mandatory
minimum.

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occasion to consider the § 5K1.1 factors and we need not reach Reyes’s arguments
that the court misunderstood the standard under § 5K1.1 and failed to explain its
reasoning adequately.
AFFIRMED.

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