IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-30655
Conference Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALLEN MAVOR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC Nos. CA-95-387 and CR-92-123-D
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(October 18, 1995)
Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
IT IS ORDERED that Allen Mavor's motion for leave to appeal
in forma pauperis (IFP) from the denial of his motion to vacate,
28 U.S.C. § 2255, is DENIED, because his appeal lacks arguable
merit and is therefore frivolous. See Howard v. King, 707 F.2d
215, 219-20 (5th Cir. 1983). Because the appeal is frivolous, IT
IS FURTHER ORDERED that the appeal is DISMISSED. See 5th Cir. R.
42.2.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-30655
-2-
Mavor contends that he is entitled to specific performance
of the Government's alleged promise to move for a reduction of
his sentence pursuant to Fed. R. Crim. P. 35(b). He asserts that
this was not a "plea agreement" and argues that the district
court erred by concluding that he, Mavor, claimed it was. He
requests this court to grant him a "three point reduction in his
sentence."
Rule 35(b) provides in part that "[t]he [district] court, on
motion of the Government . . . may reduce a sentence to reflect a
defendant's subsequent, substantial assistance in the
investigation or prosecution of another person who has committed
an offense." The court has "the authority to reduce such
sentence to a level below that established by statute as a
minimum sentence." Id.
However, "the government's failure to file such a motion is
not reviewable unless the defendant makes a `substantial
threshold showing' that the government's refusal is based on
unconstitutional motives." United States v. Sneed, 63 F.3d 381,
___ n.6 (5th Cir. 1995), 1995 WL 502748 *8 (citing Wade v. United
States, 504 U.S. 181 (1992)). "Thus, a defendant would be
entitled to relief if a prosecutor refused to file a substantial-
assistance motion, say, because of the defendant's race or
religion." Wade, 504 U.S. at 186. Mavor has made no such
showing.
IFP DENIED; APPEAL DISMISSED.