[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
OCTOBER 31, 2011
No. 10-14728 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 1:91-cr-00655-FAM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
CHARLES CLARK,
a.k.a. Bunky Brown,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 31, 2011)
Before EDMONDSON, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Charles Clark, a federal prisoner proceeding pro se, appeals from the district
court’s denial of his motion to compel the government to file a motion for a
sentencing reduction on his behalf, pursuant to Fed. R. Crim. P. 35(b). Clark
argued that, despite rendering substantial assistance to the government, the
government refused to file a Rule 35(b) motion as punishment for his earlier
decision to proceed to trial.
We review de novo whether the district court can compel the government to
file a substantial assistance motion. See United States v. Forney, 9 F.3d 1492,
1498 (11th Cir. 1993). Generally, the government has the power, but not the duty,
to file a motion to reduce sentence when a defendant has provided substantial
assistance to the government. Wade v. United States, 504 U.S. 181, 185 (1992);
United States v. McNeese, 547 F.3d 1307, 1309 (11th Cir. 2008). The
government’s refusal to file a Rule 35(b) motion can be reviewed by the district
court, and the district court can grant relief, only if it finds that the government’s
refusal was based on an unconstitutional motive, such as race or religion. Wade,
504 U.S. at 185-86.
In this case, the district court properly denied Clark’s motion to compel the
government to file a Rule 35(b) motion. This is so because, even assuming that
Wade prohibits the government from retaliating against defendants who exercise
their constitutional right to proceed to trial, Clark failed to make a “substantial
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showing” that the government harbored such a motive. See United States v.
Dorsey, 554 F.3d 958, 961 (11th Cir. 2009). Accordingly, we affirm.
AFFIRMED.
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