[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 7, 2005
No. 05-10284 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-00251-CR-002
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ADRIAN LEMOYNE LACEY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(July 7, 2005)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Adrian LeMoyne Lacey, a federal prisoner serving a 63-month sentence for
possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1),
appeals pro se the denial of his post-judgment motion to compel the government to
file a Rule 35(b) motion for reduction of his sentence. On appeal, Lacey argues
that the government breached his plea agreement by refusing to file a motion
pursuant to Rule 35 of the Federal Rules of Criminal Procedure to reduce his
sentence after he allegedly offered the government substantial assistance in the
apprehension of a fugitive. Lacey claims that the government refused to file the
motion because of his race.1 We find no error, and affirm his sentence.
Although the government argues that Lacey waived the right to collaterally
attack his sentence when he entered into the plea agreement, we have previously
considered appeals alleging government breach of a plea agreement despite appeal
waivers. See United States v. Copeland, 381 F.3d 1101, 1105 (11th Cir. 2004).
Thus, we conclude that we may consider this appeal.
We review de novo whether the district court can compel the government to
make a substantial assistance motion. See United States v. Forney, 9 F.3d 1492,
1498 (11th Cir. 1993). The question whether the government has breached a plea
agreement is also subject to de novo review. United States v. Mahique, 150 F.3d
1
Nine days after the government filed its brief in this appeal, Lacey filed a motion for
leave to supplement his brief. Because this motion was filed within the 14-day time limit for
filing a reply brief, we have construed his motion as a reply brief. See Fed.R.App.P. 31(a)(1).
2
1330, 1332 (11th Cir. 1998). After a defendant has been sentenced, Rule 35(b)
permits the district court, upon motion of the government, to reduce the sentence
for substantial assistance. Fed.R.Crim.P. 35(b). The government has “‘a power,
not a duty, to file a motion when a defendant has substantially assisted.’” Forney, 9
F.3d at 1500 (quoting Wade v. United States, 504 U.S. 181, 185 (1992)). In Wade,
the Supreme Court held 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,” such as in a
case where the refusal was “because of the defendant’s race or religion.” Wade,
504 U.S. at 185-86. A defendant must make not only an allegation, but also a
“substantial showing” that the refusal was based on such constitutionally
impermissible grounds. Forney, 9 F.3d at 1502.
We find that Lacey failed to make a substantial showing of unconstitutional
motive. Lacey alleges that he provided the government with substantial assistance
and the government refused to file a Rule 35 motion because he is African-
American. In support of this argument, he claims that the prosecutor who handled
his case had discriminated against three other African-American defendants, and
that a similarly situated white defendant had received a downward departure based
on substantial assistance. The allegations of discrimination were conclusory and
3
unsubstantiated. Furthermore, unlike the white defendant, Lacey had failed a
polygraph test.2 Thus, Lacey and the white defendant were not similarly situated.
We also find no breach of the plea agreement, which gave the government
the discretion to decide whether or not to file a substantial assistance motion. In
this case, the district court found that the government had refused to file the motion
because Lacey failed the polygraph examination. The government was not
required to file a substantial assistance motion, and acted within its discretion in
refusing to file the motion on these grounds.
Because we find no reversible error, we affirm Lacey’s sentence.
AFFIRMED.
2
The terms of Lacey’s plea agreement required Lacey to submit to the polygraph
examination, which sought to determine whether Lacey had information regarding the shooting
death of his pregnant girlfriend.
4