[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 25, 2006
No. 04-15680 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 96-00392-CR-9-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CEDRIC HOLLAND,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 25, 2006)
Before TJOFLAT, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Cedric Holland, a federal prisoner serving a 151-month sentence for
possession with intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841(a)(1), appeals from the district court’s denial of his motion to compel the
government to file a Fed.R.Crim.P. 35(b) motion to reduce his sentence for
substantial assistance. On appeal, Holland argues (1) that the instant appeal is not
barred by the sentence-appeal waiver in his plea agreement; (2) the government’s
refusal to file a Rule 35(b) motion on his behalf constituted a breach of the plea
agreement and a subsequent oral promise to file such a motion; and (3) the district
court erred by denying his motion for an evidentiary hearing.
Upon a thorough review of the record on appeal, including Holland’s written
plea agreement, the transcripts of the change-of-plea and sentencing hearings, and
Holland’s “Motion to Compel Specific Performance of Plea Agreement and Filing
of Rule 35(b) Motion” and related pleadings, and after consideration of the briefs
of the parties to this Court, we find no reversible error.
The Supreme Court has held that federal district courts may review the
government’s refusal to file a substantial-assistance motion if the defendant first
makes a “substantial threshold showing” that the refusal was based upon an
unconstitutional motive, such as race or religion. Wade v. United States, 504 U.S.
181 (1992). In the absence of this showing, the defendant has no right to discovery
or an evidentiary hearing on this issue. Id. at 186. In Wade, the Court noted that a
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defendant would be entitled to relief if the prosecutor’s refusal to move was not
rationally related to any legitimate government interest. Id. Applying the Supreme
Court’s holding in Wade, this Court has concluded that “courts are precluded from
intruding into prosecutorial discretion,” except where there is “an allegation and a
substantial showing that the prosecution refused to file a substantial assistance
motion because of a constitutionally impermissible motivation, such as race or
religion.” United States v. Forney, 9 F.3d 1492, (emphasis in original).
Holland’s allegations that the government’s refusal to file a Rule 35(b)
motion was “arbitrary” and made in “bad faith” are insufficient to justify judicial
review, and because the government did not breach the plea agreement by refusing
to file a Rule 35(b) motion when they retained discretion in the matter, the district
court did not err in denying Holland’s “Motion to Compel” or his motion for an
evidentiary hearing on this issue.
AFFIRMED.
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