[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11140
August 29, 2005
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-60152-CR-WPD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KELVIN GIBSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 29, 2005)
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Kelvin Gibson, proceeding pro se, appeals the district court’s denial of his
“motion to request specific performance of the government to grant reduction of
sentence pursuant to Rule 35(b).” On appeal, Gibson argues that the district court
erred by denying his motion and not considering “the due process violation when
the government failed to file a Rule 35 motion based on the appellant’s substantial
assistance to the government.” We review de novo whether the government can
be compelled to make a substantial assistance motion. See United States v.
Forney, 9 F.3d 1492, 1498 (11th Cir. 1998). After thorough review of the record
and careful consideration of the parties’ briefs, we affirm.
Gibson pled guilty, pursuant to a written plea agreement, to one count of
bank robbery, in violation of 18 U.S.C. § 2113(a), (d) (Count 1), and one count of
knowingly carrying a firearm during a crime of violence (Count 2), in violation of
18 U.S.C. § 924(c). In the written plea agreement, the government agreed to
recommend at sentencing a 3-level reduction for Gibson’s timely acceptance of
responsibility, pursuant to U.S.S.G. § 3E1.1. The written plea agreement did not
contain any provisions relating to a motion for substantial assistance, either
pursuant to Fed. Crim. P. 35(b) or U.S.S.G. § 5K1.1. The district court sentenced
Gibson to a total of 154 months’ imprisonment: 70 months as to Count 1 and 84
months as to Count 2, to run consecutively.
Almost two years after he was sentenced, Gibson, proceeding pro se, filed
the instant motion. In his motion, Gibson claimed that he provided substantial
assistance to the United States Attorney’s Office for the Northern District of
2
Florida and the State District Attorney in Tallahassee, Florida. Gibson stated that,
in return, he was promised a recommendation to the United States Attorney’s
Office for the Southern District of Florida that he receive a substantial assistance
reduction in his sentence. Gibson further argued that his written plea agreement
contained a provision providing that the government would recommend a
substantial-assistance reduction.
The district court denied his motion, stating that Gibson failed to “make a
substantial showing of prosecutorial discrimination, bad faith or irrational conduct
so as to entitle him to an evidentiary hearing.” Moreover, the court noted,
Gibson’s written plea agreement contained no provision about substantial
assistance or any indication that he would receive a reduction in his sentence based
on substantial assistance.
Rule 35 allows the government to move to reduce a defendant’s sentence
after sentencing when the defendant provides substantial assistance in investigating
or prosecuting another person. See Fed. R. Crim. P. 35(b). Moreover, construing
U.S.S.G. § 5K1.1, the Supreme Court has held that the government has the power,
but not the duty, to file a motion to reduce a defendant’s sentence when the
defendant has provided substantial assistance. Wade v. United States, 504 U.S.
181, 185, 112 S. Ct. 1840, 1843, 118 L. Ed. 2d 524 (1992). The Supreme Court
3
also stated 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. Thus, a
defendant would be entitled to relief if a prosecutor refused to file a
substantial-assistance motion, say, because of the defendant’s race or
religion. . . .[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.
Id. at 185-186, 112 S.Ct. at 1843-1844.
Based on our careful review of the plea agreement, we, like the district court,
have found no mention of substantial assistance or a promise by the government to
file a substantial-assistance motion should Gibson provide authorities with
substantial assistance. Moreover, Gibson’s arguments concerning alleged bad faith
in the government’s decision not to file a Rule 35 motion do not indicate that the
decision was based on an unconstitutional motive such as race or religion, as
enumerated in Wade. Accordingly, the district court did not err by denying
Gibson’s motion.
AFFIRMED.
4