UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-6560
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANTHONY ANDREWS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-01-27-F; CA-02-44-7-F)
Submitted: September 27, 2004 Decided: November 3, 2004
Before LUTTIG, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Anthony Andrews, Appellant Pro Se. Rudolf A. Renfer, Jr.,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Anthony Andrews appeals from the district court’s denial
of his motion for reconsideration of his motion to compel the
Government to file a Fed. R. Crim. P. 35(b) motion on his behalf
and the denial of his motion to recuse the district judge for not
issuing a ruling on his motions as moot. Finding no error, we
affirm.
Andrews’ motion to compel alleged that the Government
refused to file a motion to reduce his sentence pursuant to Rule
35(b) due to unconstitutional motives. The district court found
that Andrews was subject to an earlier version of Rule 35(b) that
mandated any Government motion to reduce a defendant’s sentence
must be filed within one year of the imposition of that sentence.
Because the court found that any decision the Government made with
regard to Andrews’ assistance was made outside that one-year
window, the court found Andrews could not have benefitted from a
Rule 35(b) motion and, hence, his motion to compel was without
merit.
“[A] claim that a defendant merely provided substantial
assistance will not entitle a defendant to a remedy or even to
discovery or an evidentiary hearing. Nor would additional but
generalized allegations of improper motive.” Wade v. United
States, 504 U.S. 181, 186 (1992). A defendant must make a
“substantial threshold showing” of improper motive to warrant an
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evidentiary hearing. Id. “This court has followed the Supreme
Court’s lead and strictly interpreted the Wade exceptions, holding
that the decision not to make a downward departure motion is
properly within the government’s discretion.” United States v.
Butler, 272 F.3d 683, 686 (4th Cir. 2001). Thus, unless the
Government’s refusal to file a motion is based on an
unconstitutional motive such as race or religious animus, or is not
rationally related to a legitimate governmental end, district
courts are without authority to review a prosecutor’s discretionary
decision not to file a substantial assistance motion. Id.
Because Andrews has failed to make a substantial
threshold showing that the Government’s decision not to file a Rule
35(b) motion was due to unconstitutional motives, we find it
unnecessary to determine which version of Rule 35(b) applies to
Andrews. Although Andrews alleges the Government’s decision not to
allow him to substantially assist in the prosecution of two
defendants violated Wade, the Government states it chose not to use
the information Andrews provided because it was either unnecessary
or cumulative. Based on the record before us, we find that Andrews
has failed to make the required threshold showing that the
Government’s decision was motivated by unconstitutional reasons.
Because we are able to affirm the judgment of a district court on
any basis supported by the record, we affirm the district court’s
denial of Andrew’s motion for reconsideration on this basis. See
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Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222 (4th Cir.
2002). We also affirm the denial as moot of his motion to recuse
the district judge. Additionally, we deny Andrews’ motion to
authorize production of transcripts at Government expense, as well
as his motion to place this appeal in abeyance. Finally, we grant
his motion to file a response to the Government’s informal brief.
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
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