[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-12204 JANUARY 10, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 03-00072-CR-FTM-29-SPC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALPHONSO JAMES, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 10, 2008)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Alphonso James, Jr. appeals his 180-month sentence for knowingly
possessing a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and
924(e), after having been convicted of a crime punishable by imprisonment for a
term exceeding one year. On appeal, James argues that his sentence must be
vacated and remanded for resentencing because the district court failed to consider
a downward departure for substantial assistance pursuant to Wade v. United States,
504 U.S. 181, 112 S. Ct. 1840, 118 L. Ed. 2d 524 (1992). James asserts that the
government withheld a U.S.S.G. § 5K1.1 motion to penalize his failure to sign a
plea agreement. He maintains that there is a constitutional and statutory right to
plead guilty without a plea agreement. Alternatively, he suggests that there is no
rational basis for the government’s policy of only filing § 5K1.1 motions when
defendants enter into plea agreements. Thus, he concludes that the district court
should have considered imposing a sentence below the statutory mandatory
minimum.
Generally, whether a district court may depart downward from the Guideline
range under § 5K1.1 in the absence of a motion by the government is a question of
law subject to de novo review. United States v. Dorsey, 497 F.3d 1221, 1224 (11th
Cir. 2007). Because James did not allege that the government had an
unconstitutional motive before the district court, however, we will review only for
plain error. United States v. Ward, 486 F.3d 1212, 1221 (11th Cir.), cert. denied,
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— U.S. —, 128 S. Ct. 398, — L. Ed. 2d — (2007). When reviewing for plain
error, we cannot reverse “unless there is: (1) error, (2) that is plain, and (3) that
affects substantial rights.” Id. (internal quotation marks omitted). If these
conditions are met, we may then exercise our discretion to notice a forfeited error,
but only if “the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (internal quotation marks omitted). Furthermore, an
error is plain only if it is “clear under current law.” United States v. Chau, 426
F.3d 1318, 1322 (11th Cir. 2005) (per curiam) (internal quotation marks omitted).
Section 5K1.1 of the Guidelines provides that “[u]pon motion of the
government stating that the defendant has provided substantial assistance in the
investigation or prosecution of another person who has committed an offense, the
court may depart from the guidelines.” U.S.S.G. § 5K1.1. Section 5K1.1 confers
the power, but not the duty, to file a motion where a defendant has provided
substantial assistance. Dorsey, 497 F.3d at 1224. The district court typically
cannot grant a downward departure under § 5K1.1 absent a motion by the
government. Id.
Where the government refuses to file a motion based on an unconstitutional
motive such as race or religion, however, the district court has authority to review
and remedy the prosecutor’s decision. Wade, 504 U.S. at 185–86, 112 S. Ct. at
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1843–44. We recently clarified, moreover, that “refusing to file a § 5K1.1 motion
in retribution for exercising the Sixth Amendment right to a trial by jury is an
unconstitutional motive under Wade.” Dorsey, 497 F.3d at 1225. A mere claim
that a defendant has provided substantial assistance or a general allegation of an
improper motive, however, will not warrant a remedy or even an evidentiary
hearing. Wade, 504 U.S. at 186, 112 S. Ct. at 1844. Review is only appropriate
where the defendant alleges and makes a substantial showing that the prosecution
refused to file a § 5K1.1 motion because of a constitutionally impermissible
motive. Dorsey, 497 F.3d at 1225.
Upon review of the record and the parties’ briefs, we discern no reversible
error. James essentially argues that in refusing to file a § 5K1.1 motion, the
government unconstitutionally penalized him for exercising his right to plead
guilty under the Sixth Amendment. This argument is not clearly resolved by “the
explicit language of a statute or rule.” Chau, 426 F.3d at 1322 (internal quotation
marks omitted). Nor is it clearly resolved by the language of the Sixth
Amendment. Thus, the alleged error committed by the district court can be “plain”
only if “precedent from the Supreme Court or this Court directly resolv[es] it.” Id.
James relies on no direct authority for his assertion that the government’s refusal to
move for a § 5K1.1 motion was based on an unconstitutional motive, and neither
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Wade nor Dorsey directly resolved the question of whether a district court has the
authority to grant a downward departure where the government refuses to file a
§ 5K1.1 motion because the defendant did not sign a plea agreement.
Contrary to James’s argument, moreover, we have not construed Wade
broadly enough to permit a court to grant a defendant relief when, absent an
unconstitutional motive such as race, religion, or another arbitrary classification,
the government’s refusal to move for a reduction is not rationally related to any
legitimate government end. See United States v. Nealy, 232 F.3d 825, 831 (11th
Cir. 2000) (limiting review of government’s refusal to file substantial assistance
motions to claims of unconstitutional motive); United States v. Forney, 9 F.3d
1492, 1503 n.4 (11th Cir. 1993) (limiting review of failure to file substantial
assistance motion to unconstitutional motive and acknowledging the proper
“reluctance to enter into the prosecutorial discretion arena of the executive
branch”). Therefore, even if we were to assume that the district court erred in
failing to consider a downward departure for substantial assistance, any such error
was not “plain” because it was not clear under existing law. See Chau, 426 F.3d at
1322. Accordingly, we affirm.
AFFIRMED.
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