[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 21, 2006
No. 05-15558 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 98-06015-CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAPHNE CREARY,
a.k.a. Mom,
a.k.a. Ma,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(December 21, 2006)
Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Daphne Creary, a pro se federal prisoner, appeals the district court’s denial
of her motion for a sentence reduction, which was filed pursuant to Federal Rule of
Criminal Procedure 35. On appeal, Creary argues that the district court erred in
finding that it had no jurisdiction to consider her motion. She asserts that her
cooperation with the authorities was substantial, warranting a reduction of her
sentence because: (1) the testimony that she provided in court and at grand jury
hearings helped lead to the indictments of other individuals; and (2) she
encouraged other inmates to come forward with information to assist the
authorities. Creary claims that she was assured by the government, on numerous
occasions, that a Rule 35(b) motion would be filed on her behalf, as the
investigators whom she worked with had recommended to the U.S. Attorney’s
Office that a Rule 35(b) motion be filed, and various prosecutors had agreed to file
motions on her behalf.
Whether a court has jurisdiction over a case is a “question of law subject to
plenary review.” United States v. Stossel, 348 F.3d 1320, 1321 (11th Cir. 2003)
(per curiam), cert. denied, 541 U.S. 966, 124 S. Ct. 1730 (2004). We review de
novo whether the district court could compel the government to make a substantial
assistance motion. United States v. Forney, 9 F.3d 1492, 1498 (11th Cir. 1993).
We have indicated that federal courts have “an obligation to look behind the label
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of a motion filed by a pro se inmate and determine whether the motion is . . .
cognizable under a different remedial statutory framework.” United States v.
Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990). Two possibilities present
themselves here: (1) a motion to modify the sentence pursuant to Rule 35; or (2) a
motion to compel the government to file a Rule 35(b) motion for a reduction of
sentence.
“[A]side from the specific parameters set forth by the federal statutory
provisions controlling sentencing, as well as the Federal Rules of Criminal
Procedure,” district courts do not have the authority to modify a sentence. See
United States v. Diaz-Clark, 292 F.3d 1310, 1315 (11th Cir. 2002). Rule 35 allows
a court to correct a prisoner’s sentence either: (1) when the sentence resulted from
“arithmetical, technical, or other clear error,” within seven days of the sentencing;
or (2) upon a substantial assistance motion filed by the government. Fed. R. Crim.
P. 35(a), (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, 112 S. Ct. 1840, 1843 (1992)). The Supreme Court, in
Wade, 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
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the refusal was based on an unconstitutional motive,” like “race or religion.” 504
U.S. at 185-86, 112 S. Ct. at 1843-44. A defendant who merely claims to have
provided substantial assistance or who makes only generalized allegations of
improper motive is not entitled to a remedy or even to discovery or an evidentiary
hearing. Id. at 186, 112 S. Ct. at 1844. Thus, judicial review is appropriate only
when “there is an allegation and a substantial showing that the prosecution refused
to file a substantial assistance motion because of a constitutionally impermissible
motivation.” Forney, 9 F.3d at 1502 (citation and footnote omitted).
Upon careful review of the record on appeal and consideration of the parties’
briefs, we discern no reversible error. The district court lacked the jurisdiction
under Rule 35(a) to modify Creary’s motion because it was filed more than seven
days after her sentence was imposed. See Diaz-Clark, 292 F.3d at 1317 (holding
that the limitation under Rule 35(c) - now Rule 35(a) - is jurisdictional). Further,
because Creary did not make a substantial showing that the prosecution refused to
file a Rule 35(b) motion for reduction of her sentence based upon an
unconstitutional motive, the district court did not err in denying her motion to the
extent that it could be construed as motion to compel the government to file a Rule
35 motion on her behalf. Accordingly, we affirm.
AFFIRMED .
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