United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 26, 2004
Charles R. Fulbruge III
Clerk
No. 03-10690
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RANDY HARRIS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:92-CR-289-H
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Before SMITH, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:1
Randy Harris, federal prisoner # 23373-077, appeals the
district court’s denial of his motion for downward departure
relating to the sentence imposed following his 1992 jury conviction
for conspiracy to commit extortion, extortion, conspiracy to
distribute cocaine base, and distribution of cocaine base.
To the extent Harris relies on U.S.S.G. § 5K1.1, his argument
is misplaced. U.S.S.G. § 5K1.1 operates upon Government motion at
the time of original sentencing. United States v. Mitchell, 964
1
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
F.2d 454, 461 (5th Cir. 1992). The Government has filed no such
motion, and Harris is not authorized under the Guidelines to bring
such a motion. See U.S.S.G. § 5K1.1.
Harris argues that he has provided substantial assistance to
the Government and that the Government’s refusal to file a downward
departure motion pursuant to FED. R. CRIM. PRO. 35(b) is
unconstitutionally motivated. Harris’ arguments are vague and are
not the “substantial threshold showing” of unconstitutional
motivation that is required before the district court can consider
a defendant’s FED. R. CRIM. PRO. 35(b) motion. See United States v.
Sneed, 63 F.3d 381, 389 n.6 (5th Cir. 1995). Because Harris failed
to make a substantial showing of unconstitutional motivation, the
district court was without authority to consider Harris’ Rule 35(b)
motion. See id.
Additionally, Harris has failed to brief whether the district
court erred when it failed to hold the evidentiary hearing that he
requested and when it did not grant relief pursuant to 18 U.S.C.
§ 3553(e) and U.S.S.G. § 5K2.0, both of which were cited in his
district court pleadings. This court “will not raise and discuss
legal issues that [Harris] has failed to assert.” Brinkmann v.
Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1987). Harris has abandoned these issues on appeal because he has
not addressed these issues. E.g., Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993).
2
Harris has thus filed an appeal from a denial of an
unauthorized motion that the district court was without
jurisdiction to entertain. See United States v. Early, 27 F.3d
140, 142 (5th Cir. 1994). Although the district court denied the
motion on the merits, we may affirm on the alternative basis that
the district court lacked jurisdiction to entertain Harris’ motion.
Id.
The judgment of the district court is AFFIRMED.
3