UNITED STATES of America, Plaintiff-Appellee, v. Garry Jermaine PURVIS, Defendant-Appellant, 30 F. App'x 89

OPINION PER CURIAM. Garry Jermaine Purvis appeals from an order of the district court denying his motion to compel the government to file a motion for a downward departure under U.S. Sentencing Guidelines Manual § 5K1.1, p.s. (2000). Purvis was sentenced in September 1999. His pro se motion to compel a § 5K1.1 motion was filed in August 2001, after the government’s time to file either a § 5K1.1 motion or a motion to reduce Purvis’ sentence under Rule 35(

b) of the Federal Rules of Criminal Procedure had expired. Moreover, our review of the record reveals that Purvis sought to compel a § 5K1.1 motion at sentencing and the government explained that his assistance had not been substantial. Purvis’ plea agreement did not obligate the government to request a departure unless it deemed his assistance to be substantial, and Purvis has made no showing that the government’s refusal to move for a departure was based on an unconstitutional motive or unrelated to a legitimate government purpose. See Wade v.

United States, 504 U.S. 181, 186, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992). We therefore affirm the district court’s order. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.