[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 27, 2008
No. 07-13958 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-60186-CR-UU
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK ANTHONY MIGNOTT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 27, 2008)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Federal prisoner Mark Anthony Mignott appeals the district court's denial of
his motion to compel the Government to file a Federal Rule of Criminal Procedure
35(b) motion to reduce his sentence for substantial assistance. Mignott asserts the
Government breached his written plea agreement when it failed to seek a
sentencing reduction under Rule 35 based on his cooperation. Mignott also
contends the district court may review the Government’s refusal to file a Rule 35
motion because the refusal was based on an unconstitutional motive–race, and was
not rationally related to any legitimate motive. Finally, he argues that, as he
offered evidence of unconstitutional conduct that went beyond a “generalized
allegation of improper motive,” he was entitled to an evidentiary hearing.
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: (1) not previously known to the defendant; (2) not useful to
the government until more than a year after the defendant’s sentencing; or (3) 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). We have held 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.
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1993) (quoting Wade v. United States, 112 S. Ct. 1840, 1843 (1992) (holding such
in the context of U.S.S.G. § 5K1.1)). Where a plea agreement requires the
government only to “consider” filing a Rule 35 motion and places the decision
“solely” in the hands of the government, the government retains this “power” and
does not breach the agreement by failing to file such a motion. See id. at 1499-
1500. The district court has no jurisdiction to review whether the defendant in fact
offered substantial assistance. See id. at 1499-1502 & n.2 (“The district court and,
consequently, this court do not evaluate the assistance rendered by a defendant
offering cooperation as a term of his plea agreement unless and until the
government makes a 5K1.1 motion for downward departure based on substantial
assistance. Thus, the courts are precluded from intruding into prosecutorial
discretion.”) (internal citation omitted).
“Judicial review is appropriate 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 (emphasis in original). A defendant who 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, 112 S. Ct. at 1844.
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As an initial matter, Mignott argues, for the first time on appeal, that the
district court erred in failing to compel the Government to file a Rule 35 motion
because the Government’s refusal was a breach of the original, written plea
agreement. Because the plea agreement specifically stated the Government would
file a Rule 35 motion if, in its “sole and unreviewable judgment,” such a motion
was warranted, the district court did not have jurisdiction to review whether the
government had breached the plea agreement. See Forney, 9 F.3d at 1499-1502.
The district court also did not err by denying Mignott’s motion to compel
the Government to file a Rule 35(b) motion because he failed to make a substantial
showing the Government’s refusal to do so was based on an unconstitutional
motive. See Forney, 9 F.3d at 1498 (11th Cir. 1993) (reviewing de novo whether
the district court could compel the Government to make a substantial assistance
motion). Mignott offered no evidence in support of his conclusory allegation that
he was treated differently from his codefendant based on his race. The
Government, however, pointed out reasonable distinctions between Mignott and
his codefendant, which would explain any difference in treatment. Further,
Mignott’s claim the Government acted in bad faith is insufficient to justify judicial
review. See United States v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000) (“[This
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court] limit[s its] review of the government's refusal to file substantial assistance
motions to claims of unconstitutional motive.”).
Finally, the district court did not abuse its discretion by refusing to hold an
evidentiary hearing. See United States v. Gay, 251 F.3d 950, 951 (11th Cir. 2001)
(reviewing the district court’s denial of an evidentiary hearing for an abuse of
discretion). In the absence of a “substantial threshold showing” 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, 112 S. Ct. at 1844. Mignott was not entitled to an evidentiary
hearing because he failed to make a “substantial threshold showing” the
Government’s refusal to file a Rule 35(b) motion was based on a constitutionally
impermissible motive. Accordingly, we affirm the district court.
AFFIRMED.
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