United States v. Maxon Morgan

Case: 11-30156 Document: 00511582856 Page: 1 Date Filed: 08/25/2011 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED August 25, 2011 No. 11-30156 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. MAXON HARVEY MORGAN, Defendant-Appellant Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:93-CR-491-5 Before REAVLEY, SMITH, and PRADO, Circuit Judges. PER CURIAM:* Maxon Harvey Morgan, federal prisoner # 239980-034, appeals the district court’s denial of his motion to compel the Government to file a motion for reduction of sentence pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure, and the denial of his discovery motion under Rule 36 of the Federal Rules of Civil Procedure. Morgan argues that the Government was required to file a motion for a reduction of his sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure based on his substantial assistance in providing * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 11-30156 Document: 00511582856 Page: 2 Date Filed: 08/25/2011 No. 11-30156 information in the criminal prosecution of another individual. He does not argue that the Government’s refusal to file a Rule 35 motion was based on an unconstitutional motive. See, e.g., United States v. Grant, 493 F.3d 464, 467 (5th Cir. 2007). He has also failed to show that the Government either was compelled to file or bargained away its discretion concerning whether to file a Rule 35 motion. See United States v. Price, 95 F.3d 364, 368 n.2 (5th Cir. 1996). Morgan’s motion to compel was “an unauthorized motion which the district court was without jurisdiction to entertain.” United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994). Accordingly, we affirm the district court’s denial of Morgan’s motion to compel and related discovery motion. See Brewster v. Dretke, 587 F.3d 764, 769 n.3 (5th Cir. 2009), cert. denied, 130 S. Ct. 3368 (2010). AFFIRMED. 2