                                                              [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                           FILED
                       -------------------------------------------U.S. COURT OF APPEALS
                                    No. 05-14169                    ELEVENTH CIRCUIT
                                                                        JUNE 8, 2006
                              Non-Argument Calendar
                      -------------------------------------------- THOMAS K. KAHN
                                                                          CLERK

                     D.C. Docket No. 99-00319-CR-FAM

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

                                      versus

GUS ANTHONY TURNER,

                                                   Defendant-Appellant.


                      ----------------------------------------
                  Appeal from the United States District Court
                    for the Southern District of Florida
                      -----------------------------------------

                                 (June 8, 2006)

Before EDMONDSON, Chief Judge, CARNES and PRYOR, Circuit Judges.

PER CURIAM:


      Appellant Gus Anthony Turner, proceeding pro se, appeals the denial of his

motion for specific performance of an alleged cooperation agreement between the
government and his nephew pursuant to which Turner claims the government was

obligated to seek a sentence reduction on Turner’s behalf. No reversible error has

been shown; we affirm.

      Turner was convicted of a drug trafficking offense in the Southern District

of Florida and sentenced to 180 months’ imprisonment. According to Turner, the

United States Attorney’s Office for the Middle District of Florida entered into a

third-party cooperation agreement with Turner’s nephew, Glenn Schofield,

pursuant to which Schofield was to render substantial assistance to law

enforcement and, in return, authorities in the United States Attorney’s Office for

the Middle District of Florida would recommend that authorities in the United

States Attorney’s Office for the Southern District of Florida seek a sentence

reduction for Turner. By Turner’s account, Schofield provided substantial

assistance and placed himself and his family in great danger to do so; the promised

sentence reduction recommendation was not forthcoming.

      Even if we were to accept Turner’s claim that a defendant can receive a

substantial assistance reduction based on the assistance of another person, that

such an agreement existed, and that his nephew performed under that agreement

(much of which is disputed by the government), Turner’s motion for specific

performance was due to be denied.

                                         2
      Post-sentencing, Fed.R.Crim.P. 35 allows the district court, upon motion of

the government, to reduce a defendant’s sentence based on substantial assistance

rendered in investigating or prosecuting another person. See Fed.R.Crim.P. 35(b).

Rule 35 empowers the district court to reduce a defendant’s sentence upon motion

of the government when a defendant provides substantial assistance; Rule 35

imposes no duty upon the government to so move. See Wade v. United States,

112 S.Ct. 1840, 1843 (1992) (concluding, in the analogous context of a section

5K1.1 sentencing motion, that limitation on court’s authority gives prosecutor the

power to file a substantial assistance motion but imposes no duty to so file). So, as

a general rule, courts can not interfere with the prosecutor’s discretionary decision

on whether to file a Rule 35 motion. See United States v. Forney, 9 F.3d 1492,

1501 (11th Cir. 1998). Limited exception applies when a court determines that the

refusal to file a Rule 35 motion was based on an unconstitutional motive, such as

race or religion. Wade, 112 S.Ct. at 1843-44; Forney, 9 F.3d at 1502.

      The claimed substantial assistance agreement between the United States

Attorney’s Office for the Middle District of Florida and Turner’s nephew was,

according to Turner, based upon Turner’s original plea agreement. In that

agreement, the prosecutor reserved to itself the right to make an unreviewable

determination about whether Turner provided substantial assistance and, if so,

                                          3
whether it warranted a substantial assistance motion. Even if we were to accept

that a third-party agreement obligated consideration of a Rule 35(b) motion, no

non-discretionary obligation to file a substantial assistance motion was created.

Absent a showing of an unconstitutional motive (and no unconstitutional motive

was alleged), Turner was entitled to no relief; the district court was without power

to compel the filing of a Rule 35 motion.

      AFFIRMED.




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