[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 22, 2005
No. 05-11197
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 94-00149-CR-001
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JASON PEREZ TAITE,
a.k.a. Jay,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(August 22, 2005)
Before TJOFLAT, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
In September 1994, appellant and eight others were charged in a multiple-
count indictment with trafficking in crack cocaine. On April 24, 1995, pursuant to
a plea agreement, appellant pled guilty to Count One of the indictment which
alleged a conspiracy to possess with intent to distribute crack cocaine in violation
of 21 U.S.C. § 846. The plea agreement contained a provision that called for the
Government to move the district court pursuant to U.S.S.G. § 5K1.1 to impose a
sentence below the Guidelines sentence range in the event appellant provided the
Government with “substantial assistance” prior to sentencing.1 If appellant did not
provide such assistance, the Government was required to recommend a sentence at
the bottom of the sentence range. Appellant failed to provide the substantial
assistance contemplated, so at sentencing, the Government recommended that the
court sentence appellant to a prison term of 210 months, the bottom of the
Guidelines sentence range of 210-262 months. The court followed the
Government’s recommendation and sentenced appellant to a prison term of 210
months.
Appellant did not appeal his sentence. Instead, on June 10, 1999, he moved
the district court to vacate his sentence pursuant to 28 U.S.C. § 2255 on the ground
that the Government had breached the plea agreement (1) by not recommending a
1
Contrary to what appellant contends in the Fed. R. Crim. P. 35 matter now before us,
the plea agreement did not obligate the Government (at some point after sentencing) to move the
court pursuant to Rule 35 to reduce his sentence.
2
§ 5K1.1 downward departure at the time of sentencing and (2) by failing to move
the court to reduce his sentence pursuant to Fed. R. Crim. P. 35. The court denied
his motion. Appellant did not appeal the ruling.
On August 27, 2001, appellant moved the court to compel the Government
to file a Rule 35 motion for sentence reduction. The court denied the motion, and
appellant did not appeal the ruling. Appellant returned to the court with essentially
the same motion on February 9, 2005, and the court denied it on February 14,
2005. Appellant filed a timely Fed. R. Civ. P. 59(e) motion to alter or amend the
February 14 ruling. The court denied the motion, and appellant took this appeal.
In his brief, appellant contends (1) that the district court erred when, without
holding an evidentiary hearing, it denied his motion to compel the Government to
file a Rule 35 motion, (2) that the Government breached the plea agreement by
failing to file a § 5K1.1 motion prior to sentencing, and (3) that his guilty plea was
involuntary because he did not “know the consequences of his plea in light of
being deprived of the expected downward departure.”
Appellant should have raised the § 5K1.1 issue at sentencing, but did not.
He did raise it along with the Rule 35 issue in the § 2255 motion he filed on June
10, 1999, which, as noted above, the court denied. What appellant alleges in the
motion before us is essentially what he alleged in the § 2255 motion he filed on
3
June 10, 1999. That motion sought the same relief his current motion seeks: the
enforcement of a plea agreement allegedly containing the Government’s promise to
file a § 5K1.1 motion at sentencing or a Rule 35 motion post sentencing.2
Appellant’s current motion is, though brought under Rule 35 rather than § 2255,
nothing more than a successive § 2255 motion. The district court lacked
jurisdiction to entertain the motion because appellant had not obtained this court’s
leave to file it pursuant to 28 U.S.C. § 2255.
We therefore affirm the district court’s decision on the ground that the
district court lacked subject matter jurisdiction to entertain appellant’s motion.
SO ORDERED.
2
We note in passing that appellant’s overstates the Government’s § 5K1.1 promise and
that the plea agreement is silent as to Rule 35, meaning that the Government has no obligation to
file a Rule 35 motion.
4