United States v. Parra-Mercado

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                IN THE UNITED STATES COURT OF APPEALS
                                                                             FILED
                         FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                  U.S.
                          ________________________ ELEVENTH CIRCUIT
                                                                        JULY 20, 2011
                                 No. 10-15547                            JOHN LEY
                             Non-Argument Calendar                         CLERK
                           ________________________

                      D.C. Docket No. 0:07-cr-60210-WPD-1

UNITED STATES OF AMERICA,

                                     llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

                                        versus

ORLANDO PARRA-MERCADO,

                                  lllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                   (July 20, 2011)

Before BARKETT, WILSON and BLACK, Circuit Judges.

PER CURIAM:

      Orlando Parra-Mercado, a federal prisoner convicted of a drug trafficking

offense, appeals from the district court’s denial of his motion for specific
performance of his plea agreement. In his motion, Parra-Mercado requested the

court to compel the government to file a motion for a sentencing reduction based

on his substantial assistance, pursuant to Fed. R. Crim. P. 35(b), even though the

government retained the “sole and unreviewable” discretion whether to do so

under the plea agreement.

      We review de novo whether the district court can compel the government to

file a substantial assistance motion. See United States v. Forney, 9 F.3d 1492,

1498 (11th Cir. 1993). Generally, the government has the power, but not the duty,

to file a motion to reduce sentence when a defendant has provided substantial

assistance to the government. Wade v. United States, 504 U.S. 181, 185 (1992);

United States v. McNeese, 547 F.3d 1307, 1309 (11th Cir. 2008). The

government’s refusal to file a Rule 35(b) motion can be reviewed by the district

court, and the district court can grant relief, only if it finds that the government’s

refusal was based on an unconstitutional motive, such as race or religion. Wade,

504 U.S. at 185-86.

      In this case, Parra-Mercado did not allege that the government’s failure to

file a Rule 35(b) motion was based on his race or religion. Rather, he alleged that

the government failed to do so in order to pressure his brother to testify in an

unrelated case, which he asserts is a constitutionally-impermissible motive. Even

                                           2
assuming arguendo that such a motive is reviewable under Wade, Parra-Mercado

did no more than speculate in his motion that the government “may” have

possessed such a motive. Thus, he has failed to make the requisite “substantial

showing” in this regard. Forney, 9 F.3d at 1502. Accordingly, the district court

did not abuse its discretion by denying Parra-Mercado an evidentiary hearing, and

we affirm.

      AFFIRMED.




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