[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16365 ELEVENTH CIRCUIT
JULY 20, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 09-00280-CR-T-27TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALLAN RAY STEPHENS,
a.k.a. Anthony Rembrant,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 20, 2010)
Before TJOFLAT, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Allan Ray Stevens, an alien, appeals his 24-month sentence following a
bench trial in which the district court found him guilty of illegally re-entering the
United States after having been deported subsequent to a conviction of an
aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2) and of illegally
entering the United States in violation of 8 U.S.C. §§ 1325(a)(1) and 1329. He
contends that the district court erred by concluding that it lacked authority to order
the government to file an acceptance of responsibility motion to adjust his offense
level pursuant to U.S.S.G. § 3E1.1(b) absent a substantial showing of an
unconstitutional motivation.
We review the denial of an acceptance of responsibility reduction for clear
error. United States v. Knight, 562 F.3d 1314, 1322 (11th Cir.), cert. denied, 130
S.Ct. 192 (2009). The defendant bears the burden of showing that he is entitled to
a reduction for acceptance of responsibility and must present more than a guilty
plea. United States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999).
Under U.S.S.G. § 3E1.1(b), a defendant who “clearly demonstrates
acceptance of responsibility for his offense,” see U.S.S.G. § 3E1.1(a), is entitled to
an additional one-level reduction in his offense level if, among other conditions,
the government makes a motion “stating that the defendant has assisted authorities
in the investigation or prosecution of his own misconduct by timely notifying
authorities of his intention to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial.” U.S.S.G. § 3E1.1(b). The commentary
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to this section explains the rationale for requiring the government to file a motion:
“Because the Government is in the best position to determine whether the
defendant has assisted authorities in a manner that avoids preparing for trial, an
adjustment under subsection (b) may only be granted upon a formal motion by the
Government at the time of sentencing.” U.S.S.G. § 3E1.1 comment. (n. 6). We
have rejected a defendant’s claim for an additional one-level reduction where there
was no government motion filed in support of such reduction. United States v.
Wade, 458 F.3d 1273, 1282 (11th Cir. 2006).
We have not yet decided under what circumstances we may review the
government’s decision not to file a § 3E1.1(b) motion. However, in the related
context of government motions under U.S.S.G. § 5K1.1 for the substantial
assistance the defendant provided, we may review the government’s decision not to
file such a motion only for unconstitutional motive. See United States v. Nealy,
232 F.3d 825, 831 (11th Cir. 2000) (citing Wade v. United States, 504 U.S. 181,
112 S.Ct. 1840, 118 L.Ed.2d 524 (1992)).
The Supreme Court in Wade concluded that under 18 U.S.C. § 3553(e) and
U.S.S.G. § 5K1.1, the government has “a power, not a duty, to file a motion when
a defendant has substantially assisted.” Wade, 504 U.S. at 185, 112 S.Ct. at 1843.
Nevertheless, the Court concluded “that a prosecutor’s discretion when exercising
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that power is subject to constitutional limitations that district courts can enforce,”
and held “that federal district courts have authority to review a prosecutor’s refusal
to file a substantial-assistance motion and to grant a remedy if they find that the
refusal was based on an unconstitutional motive.” Id. at 185-86, 112 S.Ct.
at 1843-44. “It follows that 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. Indeed, . . . a defendant has no right to discovery or an evidentiary hearing
unless he makes a substantial threshold showing.” Id. at 186, 112 S.Ct. at 1844
(quotation and citations omitted).
Because the government did not file a § 3E1.1(b) motion, which under the
plain language of the guideline is a prerequisite for an additional reduction, the
district court did not err in concluding that it was without authority to grant the
additional reduction. See Wade, 458 F.3d at 1282. Even assuming arguendo that
the review framework for a § 5K1.1 motion applies in the § 3E1.1(b) context,
Stephens presented no evidence showing that the type of unconstitutional motive
contemplated by Wade was involved here. Rather, the government stated at
sentencing that it exercised its prerogative not to file a § 3E1.1(b) motion for the
legitimate reason that, even though Stephens had stipulated to the facts necessary
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to find him guilty, it still had to prepare for the possibility of a jury trial. Because
he made no showing of improper motive, the district court did not err by
concluding that it was without authority to order the government to file a
§ 3E1.1(b) motion or to grant him an additional reduction for acceptance of
responsibility.
AFFIRMED.
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