                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-6560



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


ANTHONY ANDREWS,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-01-27-F; CA-02-44-7-F)


Submitted:   September 27, 2004           Decided:   November 3, 2004


Before LUTTIG, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Anthony Andrews, Appellant Pro Se.     Rudolf A. Renfer, Jr.,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Anthony Andrews appeals from the district court’s denial

of his motion for reconsideration of his motion to compel the

Government to file a Fed. R. Crim. P. 35(b) motion on his behalf

and the denial of his motion to recuse the district judge for not

issuing a ruling on his motions as moot.     Finding no error, we

affirm.

          Andrews’ motion to compel alleged that the Government

refused to file a motion to reduce his sentence pursuant to Rule

35(b) due to unconstitutional motives.    The district court found

that Andrews was subject to an earlier version of Rule 35(b) that

mandated any Government motion to reduce a defendant’s sentence

must be filed within one year of the imposition of that sentence.

Because the court found that any decision the Government made with

regard to Andrews’ assistance was made outside that one-year

window, the court found Andrews could not have benefitted from a

Rule 35(b) motion and, hence, his motion to compel was without

merit.

          “[A] claim that a defendant merely provided substantial

assistance will not entitle a defendant to a remedy or even to

discovery or an evidentiary hearing.     Nor would additional but

generalized allegations of improper motive.”      Wade v. United

States, 504 U.S. 181, 186 (1992).        A defendant must make a

“substantial threshold showing” of improper motive to warrant an


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evidentiary hearing.          Id.    “This court has followed the Supreme

Court’s lead and strictly interpreted the Wade exceptions, holding

that the decision not to make a downward departure motion is

properly within the government’s discretion.”                  United States v.

Butler, 272 F.3d 683, 686 (4th Cir. 2001).                     Thus, unless the

Government’s        refusal    to    file    a    motion     is    based      on   an

unconstitutional motive such as race or religious animus, or is not

rationally related to a legitimate governmental end, district

courts are without authority to review a prosecutor’s discretionary

decision not to file a substantial assistance motion.                   Id.

              Because    Andrews     has    failed    to    make   a   substantial

threshold showing that the Government’s decision not to file a Rule

35(b) motion was due to unconstitutional motives, we find it

unnecessary to determine which version of Rule 35(b) applies to

Andrews. Although Andrews alleges the Government’s decision not to

allow   him    to    substantially    assist     in   the   prosecution       of   two

defendants violated Wade, the Government states it chose not to use

the information Andrews provided because it was either unnecessary

or cumulative.       Based on the record before us, we find that Andrews

has   failed    to    make    the   required     threshold    showing      that    the

Government’s decision was motivated by unconstitutional reasons.

Because we are able to affirm the judgment of a district court on

any basis supported by the record, we affirm the district court’s

denial of Andrew’s motion for reconsideration on this basis.                       See


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Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222 (4th Cir.

2002).   We also affirm the denial as moot of his motion to recuse

the district judge.       Additionally, we deny Andrews’ motion to

authorize production of transcripts at Government expense, as well

as his motion to place this appeal in abeyance.          Finally, we grant

his motion to file a response to the Government’s informal brief.

We   dispense   with   oral   argument   because   the   facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                  AFFIRMED




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