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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11675
Non-Argument Calendar
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D.C. Docket No. 1:93-cr-00571-UU-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WAYNE ANDERSON,
a.k.a. Goldie,
a.k.a. G Man,
a.k.a. G,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 7, 2014)
Before TJOFLAT, JORDAN, and FAY, Circuit Judges.
PER CURIAM:
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Wayne Anderson appeals the district judge’s order denying his motion to
compel the government to file a motion for reduction of sentence, without an
evidentiary hearing, pursuant to Federal Rule of Criminal Procedure 35(b). We
affirm.
I. BACKGROUND
In 1994, Anderson was convicted of robbery and the use of a firearm during
a crime of violence in the Eastern District of North Carolina. He received a 300-
month imprisonment sentence; in 1997, his sentence was reduced to 270 months,
based on a substantial-assistance motion filed by the government. That same year,
Anderson and eight co-defendants were indicted in the Southern District of Florida
for drug crimes, including unlawful use of a facility in interstate commerce, and
maintaining a continuing criminal enterprise. Anderson pled guilty to: (1) one
count of conspiracy to manufacture and distribute cocaine, in violation of 21
U.S.C. § 846 (Count 1); (2) two counts of using an interstate-commerce facility to
promote and facilitate cocaine distribution, in violation of 18 U.S.C. §§ 1952 and 2
(Counts 5 and 6); (3) four counts of possession with intent to distribute cocaine, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts 11-14); and (4) one
count of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. §
848 (Count 17). The government dismissed all remaining counts against Anderson
after sentencing in accordance with the plea agreement.
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As part of his plea agreement, Anderson agreed to provide truthful
information and testimony about his and his co-defendants’ involvement in the
drug-trafficking conspiracy underlying his prosecution. In return, the government
agreed it then would move under U.S.S.G. § 5K1.1 to reduce Anderson’s sentence,
if it determined Anderson’s cooperation warranted such a motion. During
Anderson’s sentencing hearing, the government declined to file a § 5K1.1 motion,
because of Anderson’s lack of candor and incomplete cooperation. After awarding
Anderson a 3-level reduction for acceptance of responsibility, the district judge
sentenced Anderson to concurrent terms of life imprisonment for Counts 1, 11-14,
and 17, and 60-month concurrent imprisonment terms for Counts 5 and 6.
This court affirmed on direct appeal, United States v. Anderson, 132 F.3d 45
(11th Cir. Nov. 25, 1997) (per curiam) (unpublished), and the Supreme Court
denied certiorari, Anderson v. United States, 523 U.S. 1036 (1998). In 1999,
Anderson filed a 28 U.S.C. § 2255 motion to vacate, which the district judge
denied in 2000. A certificate of appealability also was denied.
In 1998, Anderson filed a habeas petition under 28 U.S.C. § 2255 in the
Eastern District of North Carolina and alleged governmental misconduct claims
pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States,
405 U.S. 150 (1972). Anderson’s § 2255 petition voluntarily was withdrawn. In
2011, Anderson filed a pro se petition for writ of mandamus in the Southern
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District of Florida and sought an order compelling the government to file a motion
to reduce his sentence. He argued the government had refused to file a motion
based on an unconstitutional motive. He further contended the government was
retaliating for his allegations that the government had perjured testimony and
withheld evidence that was favorable to him in his 1994 North Carolina
prosecution. The district judge dismissed Anderson’s petition. We dismissed
Anderson’s appeal from the district judge’s order for failure to prosecute.
In March 2013, Anderson filed this pro se motion seeking to compel the
government to file a Federal Rule of Criminal Procedure 35 motion to reduce his
sentence or to allow him to withdraw his guilty plea. After he had filed claims
against two government agents alleging Brady and Giglio violations, Anderson
contended the government had retaliated by refusing to file a motion to reduce his
sentence. Anderson asserted he voluntarily dismissed his claims against the
agents, because the agents had agreed they then would help him obtain a sentence
reduction. When Anderson asked the government to move to reduce his sentence,
the government denied his request on the ground he falsely had accused two agents
of misconduct. Anderson contends the government’s refusal to move for a
sentence reduction was based on an unconstitutional motive.
Without an evidentiary hearing, the district judge denied Anderson’s motion
to compel, found Anderson had no right to a substantial-assistance motion, and the
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government had no clear duty to file the motion on his behalf. The judge further
concluded Anderson had alleged no facts suggesting the government had acted
with an unconstitutional motive. On appeal, Anderson argues the district judge
abused her discretion, when she denied an evidentiary hearing on his motion to
compel; he continues to assert the government’s refusal to file a substantial-
assistance motion was based on an unconstitutional motive. 1
II. DISCUSSION
We review de novo whether a district judge can compel the government to
file a substantial-assistance motion. See United States v. Forney, 9 F.3d 1492,
1498 (11th Cir. 1993). A district judge’s denial of an evidentiary hearing upon a
defendant’s Federal Rule of Criminal Procedure 35 motion is reviewed for abuse
of discretion. See United States v. Winfield, 960 F.2d 970, 972 (11th Cir. 1992)
(per curiam).
Upon a motion by the government stating the defendant has provided
substantial assistance in the investigation or prosecution of another person who has
committed a crime, a sentencing judge may depart from the Sentencing Guidelines
under U.S.S.G. § 5K1.1. The judge also may consider a government motion to
1
Anderson has failed to brief the argument regarding the district judge’s implicit denial
of his alternative request to withdraw his guilty plea; thus, he has abandoned this argument.
United States v. Gupta, 463 F.3d 1182, 1195 (11th Cir. 2006). Additionally, Anderson’s claim
the government modified his plea agreement during his sentencing hearing to require it to file a
future Rule 35 motion is not properly before this court, because he did not raise it before the
district judge and asserted it for the first time in his reply brief on appeal. United States v.
Whitesell, 314 F.3d 1251, 1256 (11th Cir. 2002) (per curiam).
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reduce a sentence made more than one year after the sentence was imposed, if the
defendant’s substantial assistance involved information (1) not previously known
to the defendant, (2) not useful to the government until more than a year after the
defendant’s sentencing, or (3) the usefulness of which could not have been
anticipated until more than one year after sentencing. Fed. R. Crim. P. 35(b)(2).
Both Rule 35 and § 5K1.1 grant the government the power, but not a duty, to file a
substantial-assistance motion. See United States v. McNeese, 547 F.3d 1307, 1308
(11th Cir. 2008) (per curiam) (addressing Rule 35); Forney, 9 F.3d at 1500
(addressing § 5K1.1). Ordinarily, “courts are precluded from intruding into
prosecutorial discretion.” Forney, 9 F.3d at 1501. A district judge may review the
government’s refusal to file a substantial-assistance motion only if the defendant
first makes a substantial threshold showing that the refusal was based on an
unconstitutional motive, such as the defendant’s race or religion, or that the refusal
was not rationally related to any legitimate government end. Wade v. United
States, 504 U.S. 181, 186 (1992); United States v. Dorsey, 554 F.3d 958, 961 (11th
Cir. 2009).
Anderson has not made a substantial showing the government refused to file
a substantial-assistance motion for a constitutionally impermissible reason. See
Dorsey, 554 F.3d at 961. At Anderson’s sentencing hearing, the government
explained it did not file a motion, because it had determined Anderson had not
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been completely candid and had provided incomplete cooperation. Anderson has
alleged no facts suggesting the government harbored an unconstitutional motive at
that time. He has submitted no authority for the proposition that, based on any
later additional substantial assistance he provided, the government was required to
reevaluate its prior decision. Cf. United States v. Hernandez, 34 F.3d 998, 999-
1001 (11th Cir. 1994) (vacating and remanding the district judge’s denial of an
evidentiary hearing on the government’s Rule 35 motion, because the denial forced
a breach of the plea agreement, in which the government had promised to advise
the judge of the defendant’s post-sentence cooperation).
Anderson’s claim on appeal, that he withdrew his North Carolina
misconduct claims in exchange for the government’s agreement to file a Rule 35
motion, mischaracterizes Anderson’s motion to compel. In his motion, he asserted
he voluntarily dismissed his claims against government agents, after which the
agents agreed they would help him obtain a sentence reduction. Because Anderson
did not make a substantial showing of an unconstitutional motive, the district judge
did not abuse her discretion by failing to hold an evidentiary hearing on
Anderson’s motion to compel. See Winfield, 960 F.2d at 972.
AFFIRMED.
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