[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 5, 2006
No. 06-10973 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 00-00011-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAAC CLARK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 5, 2006)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Isaac Clark, a federal prisoner serving a 120-month sentence for conspiracy
to possess with intent to distribute cocaine and cocaine base, in violation of 21
U.S.C. § 846, appeals pro se from the district court’s denial of his motion to
compel specific performance of his plea agreement. He contends that the
government breached his plea agreement by failing, in its Federal Rule of Criminal
Procedure 35(b) motion, to fully inform the court of the extent of his cooperation.
Clark also argues that the district court erred by failing to hold an evidentiary
hearing on his motion to compel and by not specifically addressing the issues he
raised in that motion.
We review de novo whether the district court may compel the government to
file an initial substantial-assistance motion or a supplemental one. United States v.
Forney, 9 F.3d 1492, 1498 (11th Cir. 1993). A district court’s decision not to hold
an evidentiary hearing is reviewed only for an abuse of discretion. United States v.
Winfield, 960 F.2d 970, 972 (11th Cir. 1992).
Rule 35(b) allows a district court, on the government’s motion, to reduce a
defendant’s sentence to reflect substantial assistance provided by the defendant to
the government after sentencing. Fed.R.Crim.P. 35(b)(2). “Rule 35(b) ‘provides
the only avenue for reduction of a legally imposed federal prison sentence.’”
United States v. Orozco, 160 F.3d 1309, 1313 n.6 (11th Cir. 1998) (citation
omitted). The government has “a power, not a duty, to file a motion when a
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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)). Federal district
courts may review the government’s refusal to file a substantial-assistance motion
only if the defendant first makes a “substantial threshold showing” that the refusal
was based upon an unconstitutional motive, such as the defendant’s race or
religion. Wade, 504 U.S. at 185-86, 112 S.Ct. at 1843-44. In the absence of this
showing, the defendant has no right to discovery or an evidentiary hearing on this
issue. Id. at 186, 112 S.Ct. at 1844.
In the present case the district court lacked the authority to compel the
government to file another Rule 35(b) motion because Clark never alleged that the
government’s failure to file one was based on an unconstitutional motive. Instead,
Clark claimed that the government breached the plea agreement and acted in bad
faith by failing to fully inform the court of his assistance. This allegation is
insufficient to justify judicial review. Therefore, the district court was without
authority to review the government’s exercise of prosecutorial discretion, and
Clark was entitled to neither an order to compel nor an evidentiary hearing.
AFFIRMED.
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