[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_________________________ FILED
U.S. COURT OF APPEALS
No. 11-12942 ELEVENTH CIRCUIT
JAN 17, 2012
Non-Argument Calendar
JOHN LEY
_________________________
CLERK
D.C. Docket No. 7:07-cr-00025-WLS-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALFONSO MCCLOUD,
Defendant-Appellant.
___________________________
Appeal from the United States District Court
for the Middle District of Georgia
___________________________
(January 17, 2012)
Before CARNES, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Alfonso McCloud appeals pro se the district court’s denial of his motion to
compel the government to file a Federal Rule of Civil Procedure 35(b) motion for
post-sentencing substantial assistance. Because we conclude that the district court
properly determined that it lacked jurisdiction, we affirm.
In 2007, McCloud pleaded guilty to possession with intent to distribute
more than fifty grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). In
his written plea agreement, McCloud waived his right to appeal or otherwise
collaterally challenge his sentence unless it exceeded the guidelines range, and he
agreed to cooperate with authorities. The government promised to consider
whether his cooperation prior to sentencing warranted a motion for a downward
departure under U.S.S.G. § 5K1.1. If his cooperation occurred after sentencing,
the government indicated that it would consider filing a motion for a reduction in
sentence under Rule 35(b). The plea agreement specifically explained that “the
determination as to whether the defendant has provided ‘substantial assistance’
rests solely with the government.”
McCloud provided assistance prior to sentencing, and the government filed
a § 5K1.1 motion. At sentencing, a different Assistant U.S. Attorney appeared.
The district court considered the § 5K1.1 motion and departed downward from
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McCloud’s sentencing range of 262 to 327 months’ imprisonment. The court
sentenced McCloud to a term of 260 months.
In 2010, McCloud filed the instant motion alleging that he provided
additional assistance after sentencing and thus was entitled to a sentence reduction
under Rule 35(b). The district court dismissed the motion for lack of subject
matter jurisdiction. McCloud now appeals, arguing that (1) the government
breached the plea agreement and the district court had jurisdiction to consider his
claim, and (2) he did not receive full credit for his pre-sentencing assistance
because a new Assistant U.S. Attorney handled his sentencing.
We review a district court’s subject matter jurisdiction de novo. United
States v. Perez, 956 F.2d 1098, 1101 (11th Cir. 1992). We also review de novo
whether the district court can compel the government to file a substantial
assistance motion. 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
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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.
Here, McCloud did not allege that the government refused to file a
substantial assistance motion because it had an unconstitutional motive. Instead,
he belatedly alleged that the prosecution refused to file such a motion in bad faith
despite his post-sentencing assistance.1 The district court correctly determined
that it lacked jurisdiction to grant McCloud relief.
McCloud’s reliance on Santobello v. New York, 404 U.S. 257 (1971), is
misplaced. As this court explained in Forney, Wade, not Santobello, applies to
claims such as McCloud’s. See Forney, 9 F.3d at 1499 n.2. Moreover, McCloud
cannot show any breach of the plea agreement. Under the terms of the plea
agreement, the government need only consider filing a Rule 35(b) motion, and
determination as to whether McCloud provided substantial assistance was solely
within the government’s purview. Accordingly, the district court properly denied
McCloud’s motion, and we need not reach the merits of his claim on appeal.
AFFIRMED.
1
Because the district court properly determined that it lacked jurisdiction to consider
McCloud’s motion, we do not consider his claim that the substitution of a different Assistant
U.S. Attorney violated his due process rights.
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