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U.S. v. KELLEY

Nos. 90-1027, 90-1081.

956 F.2d 748 (1992)

UNITED STATES of America, Appellee, v. Ronald Leland KELLEY, Appellant. UNITED STATES of America, Appellee, v. Rodney Ray JIRUSKA, Appellant.

United States Court of Appeals, Eighth Circuit.

Decided February 5, 1992.

Attorney(s) appearing for the Case

Chip J. Lowe, Des Moines, Iowa, argued (Paul A. Zoss, on brief), for appellant Rodney Ray Jiruska.

William G. Nicholson, Cedar Rapids, Iowa, argued, for appellant Ronald Leland Kelley.

Richard Louis Murphy, Asst. U.S. Atty., Cedar Rapids, Iowa, argued (Daniel C. Tvedt, on brief), for appellee.

Before LAY, Chief Judge, HEANEY, Senior Circuit Judge, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, BEAM and LOKEN, Circuit Judges, En Banc.

JOHN R. GIBSON, Circuit Judge, joined by FAGG, BOWMAN, WOLLMAN, MAGILL and LOKEN, Circuit Judges.

We again visit the question of whether a district court can grant a downward departure from the Sentencing Guidelines for the defendant's substantial assistance to the government in the absence of either: (1) a government motion for a departure; or (2) a claim that the government's refusal to make such a motion is arbitrary,...

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