[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-10894 JULY 17, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 02-00065-CR-4-RH-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TRENTON DENORM GREEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(July 17, 2006)
Before TJOFLAT, DUBINA and HULL, Circuit Judges.
PER CURIAM:
On February 11, 2003, Trenton Green pled guilty pursuant to a plea
agreement to both counts of an indictment: Count One, armed bank robbery, in
violation of 18 U.S.C. §§ 2113(a), (d); Count Two, using and carrying a firearm in
relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i) and (ii).
In the plea agreement, the Government reserved “absolute discretion” to file a
substantial assistance motion pursuant to U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e).
At sentencing, Green moved the district court to compel the Government to file
such a motion. The court denied the motion and sentenced Green to consecutive
prison terms of 70 months on Count One and 84 months on Count Two. Green
appealed his convictions and sentences, and we affirmed. United States v. Green,
107 Fed.Appx. 892 (Table)(June 4, 2004)(Case No. 03-12778-B).
On September 2, 2005, Green moved the district court pursuant to Fed. R.
Crim. P. 35(b) to reduce his sentence based on his assistance to law enforcement.
He claimed that the Government had acted in bad faith and that it had infringed his
constitutional rights, i.e., by discriminating against him on account of his skin
color, in refusing to file a substantial assistance motion in exchange for his
cooperation in the prosecution of Eddie Ash. The court denied his motion, finding
that Green “alleged no basis for attributing to the government either an
unconstitutional motive or bad faith” in its refusal to file the requested motion.
Green now appeals the court’s ruling.
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In his brief to us, Green argues that the Government failed to file a motion to
reduce his sentence because he is a darker-skinned African American than his
codefendant who received a reduction in his sentence pursuant to U.S.S.G.
§ 5K1.1. He says, moreover, that the Government acted in bad faith because Green
provided substantial assistance to the Government by testifying at a trial in a
murder case.
Rule 35(b)(2) provides that, after a sentence has been imposed, upon motion
of the government made more than one year after sentencing, a district court may
reduce a defendant's sentence based on substantial assistance if the defendant's
substantial assistance involved information not known by the defendant, not useful
to the government, or the usefulness of which was not reasonably anticipated by
the defendant, until more than one year after sentencing. Fed. R. Crim. P. 35(b)(2).
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.
2005), cert. denied, 126 S.Ct. 1116 (2006) 1500 (quoting Wade v. United States,
504 U.S. 181, 185, 112 S.Ct. 1840, 1843, 118 L.Ed.2d 524 (1992)) (U.S.S.G.
§ 5K1.1 substantial assistance context). We limit our “review of the government's
refusal to file substantial assistance motions to claims of unconstitutional motive.”
United States v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000). A defendant who
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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. Wade, 504 U.S. at 186, 112 S. Ct. at 1844.
Thus, judicial review is generally 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, such as race or
religion.” Forney, 9 F.3d at 1502. In the absence of a “substantial threshold
showing” that the refusal to file a substantial assistance motion was based upon an
unconstitutional motive, such as race or religion, a defendant has no right to
discovery or an evidentiary hearing on this issue. Wade, 504 U.S. at 186, 112 S.Ct.
at 1844.
In this case, the district court committed no error in denying Green’s motion
to compel the Government to file a Rule 35(b) motion because Green failed to
make a substantial showing that the Government’s refusal to do so was based on an
unconstitutional motive. Green offered no evidence in support of his conclusory
allegation that he was treated differently than his codefendant based on the color of
his skin. Further, Green’s claim that the Government acted in bad faith is
insufficient to justify judicial review. Finally, Green was not entitled to an
evidentiary hearing because he failed to make a substantial threshold showing that
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the Government’s refusal to file a Rule 35(b) motion was based on a
constitutionally impermissible motive.
AFFIRMED.
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