USCA11 Case: 20-14856 Date Filed: 05/25/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-14856
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARCUS WATKINS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:06-cr-00442-TCB-AJB-1
____________________
USCA11 Case: 20-14856 Date Filed: 05/25/2022 Page: 2 of 5
2 Opinion of the Court 20-14856
Before WILSON, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Marcus Watkins appeals his 300-month sentence, imposed
after he pled guilty to brandishing a firearm during a crime of vio-
lence. He argues that the government breached his plea agreement
by failing to file a substantial-assistance motion because he pro-
vided substantial assistance and its decision was motivated by vin-
dictiveness and was not rationally related to a legitimate govern-
ment end.
We review de novo whether a district court may compel the
government to make a substantial-assistance motion. United
States v. Forney, 9 F.3d 1492, 1498 (11th Cir. 1993). Additionally,
we review de novo whether the government breached a plea
agreement. United States v. Copeland, 381 F.3d 1101, 1104 (11th
Cir. 2004).
The district court may not depart from the guidelines, pur-
suant to U.S.S.G. § 5K1.1, based upon the defendant’s substantial
assistance to the government, absent a motion by the government
requesting departure on this basis. Wade v. United States, 504 U.S.
181, 185 (1992). The government has the power, but not a duty, to
file a substantial-assistance motion. United States v. Dorsey,
554 F.3d 958, 960–61 (11th Cir. 2009). A main purpose of substan-
tial assistance is to benefit the government in its prosecution ef-
forts. United States v. Orozco, 160 F.3d 1309, 1316 (11th Cir. 1998).
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20-14856 Opinion of the Court 3
The government’s decision to refuse to file a substantial-as-
sistance motion is subject to judicial review in only two circum-
stances. First, it is reviewable if the refusal constitutes a breach of
the plea agreement. See United States v. Gonsalves, 121 F.3d 1416,
1419 (11th Cir. 1997) (discussing motions under § 5K1.1). In For-
ney, we determined that the government had not breached the
terms of the plea agreement by not filing a § 5K1.1 motion because
the agreement only provided that the government would “con-
sider” whether he provided substantial assistance and that the de-
termination was “solely” that of the government. See Forney,
9 F.3d at 1499.
Second, its discretion is subject to review if it is based on an
unconstitutional motive, such as race or religion, or is not ration-
ally related to any legitimate government end. Wade, 504 U.S. at
185–86. In Wade, the Supreme Court held that the government’s
refusal to move for substantial assistance was rationally related to
a legitimate government end because its decision could have been
based “on its rational assessment of the cost and benefit that would
flow from moving.” See id. at 186–87. We have held that our re-
view of the government’s refusal to file a substantial-assistance mo-
tion is limited to claims of unconstitutional motive. United States
v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000); see also Forney, 9 F.3d
at 1502 n.4 (determining that the Supreme Court held in Wade
“that judicial review of the government’s decision not to file a
5K1.1 motion is appropriate only when unconstitutional motiva-
tion has been alleged”). The government’s decision not to file a
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4 Opinion of the Court 20-14856
substantial-assistance motion is not reviewable for arbitrariness or
bad faith where the government merely promised to consider filing
such a motion. See Forney, 9 F.3d at 1502 & 1502 n.5. Conse-
quently, when a defendant merely claims he provided substantial
assistance or makes generalized allegations of an improper motive,
he is not entitled to a remedy or even to an evidentiary hearing.
Wade, 504 U.S. at 186; Dorsey, 554 F.3d at 961. Thus, judicial re-
view is appropriate when there is an allegation and a substantial
showing that the prosecution refused to file the motion because of
a constitutionally impermissible motivation. Dorsey, 554 F.3d at
961.
We have suggested that a valid appeal waiver might not pre-
vent a defendant from arguing that his equal protection rights were
violated because he was sentenced based on an arbitrary classifica-
tion such as race or religion. United States v. Bushert, 997 F.2d
1343, 1350 n.18 (11th Cir. 1993).
Failure to develop an argument for an issue on appeal is con-
sidered an abandonment of the issue. See Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008). We generally prefer that a dis-
trict court analyze facts under legal standards in the first instance.
See Turner v. Burnside, 541 F.3d 1077, 1086 (11th Cir. 2008).
Watkins has not pointed to a specific provision in the plea
agreement that the government breached1 or otherwise made a
1 The government agreed merely to consider whether Watkins had substan-
tially assisted, and the decision rested solely with the government.
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20-14856 Opinion of the Court 5
“substantial showing” that the government’s refusal to file a sub-
stantial-assistance motion on his behalf was based on a constitu-
tionally impermissible motivation or was not rationally related to
any legitimate government end. Watkins does not assert an un-
constitutional motive, such as race or religion. We cannot con-
clude that the courts below erred in crediting the government’s
perception that Watkins’ assistance did not rise to the level of sub-
stantial assistance, and we agree that Watkins’ information-selling
scheme was inconsistent with his cooperation with the govern-
ment. 2
AFFIRMED.
2 We also agree that there is no need in this case to consider the issue of
whether, or under what circumstances, vindictiveness might rise to the level
of a constitutionally impermissible motive. We agree that Watkins’ claim in
in this regard is based on mere generalized allegations; his report of govern-
ment misconduct (the basis of his claim of retaliatory vindictiveness) was
wholly unsubstantiated.