[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
March 15, 2006
No. 05-11977
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 00-00012-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AARON DAVENPORT,
a.k.a. Giggles,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(March 15, 2006)
Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:
After pleading guilty and receiving a 155-month sentence, Aaron Davenport
appeals the district court’s denial of his pro se motion for specific performance of
the plea agreement. After review, we affirm.
Davenport plead guilty to conspiracy to possess with intent to distribute
cocaine and cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii) and
(iii), and 846. The plea agreement stated: “If, in the sole discretion of the United
States Attorney, the defendant is deemed to have provided substantial assistance . .
. then the United States Attorney will file an appropriate substantial assistance
motion.”
At sentencing, the government filed a U.S.S.G. § 5K1.1 motion based on
Davenport’s substantial assistance. Prior to the government’s § 5K1.1 motion,
Davenport faced a guidelines range of 360 months to life. In sentencing Davenport
to 155 months, the district court noted that the sentence “was a substantial
departure from the guideline range . . . and is based upon the substantial assistance
that you have provided the government in the prosecution of others.”
More than four years later, Davenport filed a pro se motion seeking to
compel the government to file a Rule 35 motion on his behalf. According to
Davenport, he and the government had reached an oral agreement in which the
government agreed to file both a § 5K1.1 motion and a Rule 35 motion.
The district court denied Davenport’s motion, concluding that “[t]he
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Government has no contractual obligation to file a Rule 35 motion. It is within the
sole discretion of the Government whether to file a Rule 35 motion or not.”
Davenport appeals.1
After a sentence has been imposed, the government may file a Rule 35
motion asking the district court to reduce a defendant’s sentence based on
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.’” United States
v. Forney, 9 F.3d 1492, 1500 (11th Cir. 1993) (quoting Wade v. United States, 504
U.S. 181, 185, 112 S. Ct. 1840, 1843 (1992)). The Supreme Court has concluded
that “federal . . . 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 “race or religion.” Wade, 504 U.S.
at 185-86, 112 S. Ct. at 1843-44. However, a defendant who makes only
generalized allegations of improper motive is not entitled to a remedy. Id. at 186,
112 S. Ct. at 1844. Thus, judicial review is appropriate only when “there is an
1
The government contends that Davenport’s notice of appeal is untimely. However, a
notice of appeal filed by a pro se prisoner is deemed filed on the date the prisoner delivers it to
the prison authorities or places it in the prison mail system. See Houston v. Lack, 487 U.S. 266,
276, 108 S. Ct. 2379, 2385 (1988); Fed. R. App. P. 4(c). Furthermore, Davenport’s motion for
reconsideration in the district court “toll[ed] the time for filing a notice of appeal . . . .” United
States v. Vicaria, 963 F.2d 1412, 1413 (11th Cir. 1992). Because Davenport is entitled to the
benefit of the mail-box rule and the time for filing a notice of appeal was tolled until the district
court ruled on his motion for reconsideration, we conclude that the notice of appeal was timely
in this case.
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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.
We agree with the district court that Davenport’s plea agreement gave the
government absolute discretion to file a Rule 35 motion. Because the government
already filed a § 5K1.1 motion on Davenport’s behalf and because Davenport has
failed to even allege that the government acted with any unconstitutional motive in
refusing to file a Rule 35 motion, Davenport is not entitled to any relief.
For all the above reasons, we affirm the district court’s denial of
Davenport’s motion to compel the filing of a Rule 35 motion.
AFFIRMED.
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United States v. Aaron Davenport
Combined Opinion