[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14535 ELEVENTH CIRCUIT
MAY 13, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 04-00006-CR-1-MMP-AK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
STEVEN DUNLAP,
a.k.a. Superintendent Duke,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 13, 2009)
Before CARNES, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Stephen Dunlap, through counsel, appeals the district court’s denial of his
pro se motion to compel the government to comply with the terms of its plea and
cooperation agreement by submitting a Fed.R.Crim.P. 35(b) substantial assistance
motion. For the reasons set forth below, we affirm.
I.
A federal grand jury returned an indictment charging Dunlap and 5
codefendants with conspiracy to possess with intent to manufacture and distribute
more than 5 kilograms of cocaine and more than 50 grams of crack cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii) and (iii), and 846. Dunlap pled
guilty pursuant to a written plea and cooperation agreement. Per this agreement,
Dunlap would cooperate with the government through debriefings and trial
testimony, and the government had the “sole discretion” to submit a U.S.S.G.
§ 5K1.1 or Fed.R.Crim.P. 35(b) motion based on this assistance. Before
sentencing, the government submitted a § 5K1.1 motion. The government
specified, “The government files this motion on [Dunlap’s] behalf based upon [his]
agreement to continue his cooperation and testify against current [codefendants] in
the instant case and other individuals who he has identified and may be prosecuted
as this investigation continues,” and warned, “Such testimony will not qualify as a
basis for a future reduction of sentence under [Rule] 35,” and “No additional
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motion for substantial assistance shall be filed by the government based upon the
cooperation referred to above.” At sentencing, the district court noted that
Dunlap’s guideline imprisonment range was 360 months’ to life, but took into
account the § 5K1.1 motion and sentenced Dunlap to 150 months’ imprisonment.
Dunlap filed the instant pro se motion to compel the government to perform
its promises under the plea and cooperation agreement. Dunlap asserted that, post-
sentencing, he had provided information and testimony that helped to secure the
conviction of Charles Wright, a co-conspirator who had been separately indicted,
but that the government refused to submit a Rule 35(b) motion based on this
assistance. The government responded that it had not promised that it would
submit a Rule 35(b) motion if Dunlap testified against Wright, and that Dunlap’s
assistance regarding Wright was covered by the § 5K1.1. motion.
At an evidentiary hearing, Andrew Gillis, an agent with the Drug
Enforcement Agency assigned to Dunlap’s case, testified that the “other
individuals” to which the § 5K1.1 motion referred included Wright. When Dunlap
and his codefendants were indicted, the government knew of Wright’s activities
and that he was involved in the same conspiracy as Dunlap, but chose not to
include him on the same indictment for management purposes. Instead, the
government indicted Wright at some point after Dunlap was sentenced. Agent
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Gillis testified that, during post-sentencing interviews, Dunlap provided
information, and agreed to testify, against Wright. Dunlap raised the issue of the
government filing a Rule 35(b) motion “many times.” However, neither Agent
Gillis nor the government counsel ever told Dunlap that the government would do
so in connection with his assistance regarding Wright. Rather, on these occasions,
Gillis told Dunlap that their conversations still concerned the same conspiracy and
that, should Dunlap provide information on a “new case,” Gillis would notify
government counsel.
The district court denied the motion to compel. The district court reasoned
that Dunlap had neither alleged nor made a substantial showing that the
government refused to submit a Rule 35(b) motion because of an unconstitutional
motive. The district court reasoned that, rather, the government declined to submit
a Rule 35(b) motion based on his assistance regarding Wright because it already
had submitted a § 5K1.1 motion that covered this assistance.
II.
We review de novo a district court’s decision that it lacks authority to reduce
a sentence under Rule 35(b). United States v. Orozco, 160 F.3d 1309, 1312-13
(11th Cir.1998). Pursuant to Rule 35(b), “[u]pon the government’s motion made
within one year of sentencing, the court may reduce a sentence if the defendant,
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after sentencing, provided substantial assistance in investigating or prosecuting
another person.” Fed.R.Crim.P. 35(b)(1). The Supreme Court has held that this
statute gives the government “a power, not a duty, to file a motion when a
defendant has substantially assisted.” Wade v. United States, 504 U.S. 181, 185,
112 S.Ct. 1840, 1843, 118 L.Ed.2d 524 (1992) (considering motions filed pursuant
to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1). Indeed, the Supreme Court held
that the government’s discretion is such that federal district courts may review the
government’s refusal to file a substantial-assistance motion only if the defendant
first makes a “substantial threshold showing” that the refusal was based upon an
unconstitutional motive, such as the defendant’s race or religion. Id. at 185-86,
112 S.Ct. at 1843-44. We have held that arguments that the government had
reasons other than the defendant’s provision of substantial assistance do not satisfy
the Supreme Court’s unconstitutional-motive standard. See United States v. Nealy,
232 F.3d 825, 831 (11th Cir. 2000). In Nealy, the government conceded that the
defendant had provided substantial assistance by testifying against his supplier. Id.
Five days after the defendant had provided this testimony, however, he was
arrested for again possessing crack cocaine with intent to distribute. Id. For that
reason, the government declined to file the substantial assistance motion. Id. The
defendant argued that the government could not refuse to file the motion for
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“reasons other than the nature of [defendant’s] substantial assistance.” Id. We
held that this contention was not supported by the Supreme Court’s
aforementioned ruling and “[was] contrary to the broad grant of prosecutorial
discretion recognized by this [C]ourt.” Id.
III.
The district court lacked the authority to compel the government to file a
Rule 35(b) motion. See Orozco, 160 F.3d at 1312-13. Dunlap has not made a
substantial showing that the government refused to do so based on an
unconstitutional motive, such as his race or religion. See Wade, 504 U.S. at 185-
86, 112 S.Ct. at 1843-44. Dunlap’s conclusory statements to this effect are
insufficient, especially as the government’s pleadings and Agent Gillis’s testimony
demonstrate that the government did not file a Rule 35(b) motion based on his
assistance regarding Wright because it believed this sentence was covered by the
§ 5K1.1 motion. See id. Likewise, Dunlap’s claim that the government’s reason
was not related to the type or quality of his assistance and lacked a rational
relationship to a government interest does not establish that he merits relief. See
Nealy, 232 F.3d at 831. Moreover, to the extent that Dunlap argues that the
government breached the terms of its plea agreement, his argument is without
merit, as the district court specifically retained “sole discretion” to submit a
substantial assistance motion and actually did so. Accordingly, we affirm.
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AFFIRMED.
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