IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 5, 2009
No. 08-40141
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
YESENIA LEAL
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:99-CR-372-7
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Yesenia Leal, federal prisoner # 92524-079, appeals the district court’s
denial of her motion to compel the Government to file a motion for reduction of
sentence pursuant to F ED. R. C RIM. P. 35(b).
Rule 35(b) does not provide a jurisdictional basis upon which to entertain
Leal’s motion. See United States v. Early, 27 F.3d 140, 141-42 (5th Cir. 1994).
The Government’s refusal to file a Rule 35 motion is reviewable only if it is based
on an unconstitutional motive, which Leal does not allege. See United States v.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-40141
Sneed, 63 F.3d 381, 389 n. 6 (5th Cir.1995). Leal’s motion is thus unauthorized
and the district court and this court both lack jurisdiction to consider it.
Accordingly, the appeal is DISMISSED for lack of jurisdiction.
2