[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 3, 2008
No. 08-10093 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 95-00022-CR-T-EAJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT MCNEESE,
a.k.a. Bobby,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 3, 2008)
Before BIRCH, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Robert McNeese appeals the district court’s grant of the government’s
motion to reduce McNeese’s sentence as to a specific count of his multi-count
judgment, pursuant to Fed.R.Crim.P. 35(b). McNeese argues that the government
did not have the authority to limit the Rule 35(b) motion to one count and the
district court retained authority to reduce the sentence as to both counts of
conviction. For the reasons set forth below, we affirm.
I.
A federal grand jury returned a four-count indictment naming three
codefendants and charging McNeese with (1) conspiracy to import heroin, in
violation of 21 U.S.C. § 963 (“Count 1”); and (2) importing heroin, in violation of
21 U.S.C. § 952 (“Count 3”). A jury found McNeese guilty of both charges. The
district court sentenced McNeese to life imprisonment as to Count 1 and 240
months’ imprisonment as to Count 3, with these terms to run concurrently.
The government submitted a “Motion for Reduction in Sentence as to Count
One of the Judgment,” pursuant to Rule 35(b). The government explained that
McNeese had rendered substantial assistance to authorities in the Northern District
of Iowa. The government recommended that the district court reduce McNeese’s
life sentence as to Count 1 to 240 months’ imprisonment.
At a hearing on the government’s Rule 35(b) motion, the district court noted
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that the government had limited its motion to Count 1. McNeese argued that
specifying the term to which its Rule 35(b) motion should apply was beyond the
scope of the government’s discretion. McNeese likewise argued that the district
court retained authority to reduce the terms of imprisonment imposed for both
Counts 1 and 3, as “once the Rule 35[(b)] motion is made[,] the door is open for
the Court to impose whatever sentence it wants in connection with that particular
case.” The government responded that, because the discretion to file a Rule 35(b)
motion rested with the government, “[it could] make the motion as [it saw] fit.”
The government also responded that it had found no case law to the contrary. The
government explained that it directed the motion to a specific count because “[it
felt] that the defendant’s cooperation deserve[d] something less than a life
sentence,” but “[didn’t] feel it deserve[d] something less than a 20 year sentence.”
The district court asked the parties to brief the matter.
In its memorandum, the government argued that the district court’s
discretion to reduce the defendant’s sentence for his provision of substantial
assistance arose only upon motion by the government and that the government’s
decision not to file such a motion was reviewable only when based on
unconstitutional motives not at issue here. In his memorandum, McNeese
acknowledged that it appeared that we had yet to consider whether the government
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could specify to which term its Rule 35(b) should apply. McNeese argued,
however, that the government’s motivation, namely controlling McNeese’s
ultimate sentence, was improper.
The district court granted the government’s Rule 35(b) motion in part,
reducing the sentence for Count 1 to 120 months’ imprisonment, but rejected
McNeese’s argument that the motion applied to both terms of imprisonment. To
the latter end, the district court reasoned that the government had the authority to
select the sentence to which its motion should apply.
II.
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, 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
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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
motivations beyond the defendant’s provision of substantial assistance do not
satisfy the Supreme Court’s unconstitutional-motive standard for review. See
United States v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000).1 Specifically, a
defendant argued that the government could not refuse to file a substantial-
assistance motion for “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 government did not overstep its discretion by specifying the term to
which its Rule 35(b) motion should apply, and the district court did not err in
acting in accordance with this specification. The Supreme Court and this Court
long have recognized that the government discretion to seek a substantial-
1
McNeese offers United States v. Chavarria-Herrara, 15 F.3d 1033 (11th Cir. 1994), for
the contrary holding that the government cannot consider anything other than the defendant’s
provision of substantial assistance. In that case, however, we considered an argument that the
district court considered other factors in determining the extent of the reduction, rather than that
the government considered other factors in determining whether to request the reduction, and
held that this was error. Id. at 1037. McNeese has not challenged the district court’s
motivations. Accordingly, this case is inapplicable.
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assistance reduction is vast. See Wade, 504 U.S. at 185, 112 S.Ct. at 1843. There
is no reason to believe that this discretion should not extend to deciding to which
term the Rule 35(b) should be applied.
To the extent that the instant issue is whether the government erred in
declining to file a Rule 35(b) motion with regard to Count 3 also, we lack
jurisdiction to review that choice because McNeese has not shown that the
government had unconstitutional motives. See id. at 185-86, 112 S.Ct. at 1843-44.
The government’s desire to retain some control over McNeese’s sentence is not of
the same ilk as those unconstitutional motives described by the Supreme Court,
namely the defendant’s race or religion. See id. Also, we specifically have
rejected the contention that all reasons beside the defendant’s provision of
substantial assistance are unconstitutional. See Nealy, 232 F.3d at 831.
Accordingly, because the government had the discretion to direct the Rule 35(b)
motion to a specific count and did not have unconstitutional motives in doing so,
we affirm.
AFFIRMED.
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