                                                        [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               MAY 16, 2006
                               No. 05-12418                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                     D. C. Docket No. 96-00010-CR-FAM

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

GUSTAVO ROJAS-SANTANA,

                                                           Defendant-Appellant.


                         ________________________

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

                                (May 16, 2006)

Before ANDERSON, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

     Appellant Gustavo Rojas-Santana, proceeding pro se, appeals the district
court’s denial of his post-judgment motion for court intervention requesting the

court to conduct an evidentiary hearing concerning the government’s failure to file

a substantial assistance motion under Fed. R. Crim. P. 35, and if necessary, order

the government to specifically perform its portion of a plea agreement. In his

motion, Rojas-Santana alleges that the government’s failure to file a substantial

assistance motion amounted to a breach of his plea agreement. The district court

denied Rojas-Santana’s motion for lack of jurisdiction.

      We must resolve jurisdictional issues before we address the merits of

underlying claims. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

93-102, 118 S. Ct. 1003, 1012-16, 140 L. Ed. 2d 210 (1998). We review questions

of subject matter jurisdiction de novo. Milan Express, Inc. v. Averitt Express, Inc.,

208 F.3d 975, 978 (11th Cir. 2000).

      Rule 35(b)(2) provides that, after a sentence has been imposed, upon motion

of the government made more than one year after sentencing, a district court may

reduce a defendant’s sentence based on substantial assistance if the defendant’s

substantial assistance involved information not known by the defendant, not useful

to the government, or the usefulness of which was not reasonably anticipated by

the defendant, until more than one year after sentencing. Fed. R. Crim. P.




                                          2
35(b)(2).1

       We have held that the government has “‘a power, not a duty, to file a motion

when a defendant has substantially assisted.’” United States v. Forney, 9 F.3d

1492, 1500 (11th Cir. 1993) (quoting Wade v. United States, 504 U.S. 181, 185,

112 S. Ct. 1840, 1843, 118 L. Ed. 2d 524 (1992)) (holding such in the context of

U.S.S.G. § 5K1.1). If the defendant alleges and makes a threshold showing that

the government’s refusal to file a substantial assistance motion was a breach of a

plea agreement, an evidentiary hearing and relief may be appropriate. United

States v. Gonsalves, 121 F.3d 1416, 1419-20 (11th Cir. 1997). However, where a

plea agreement requires the government to “consider” filing a Rule 35 motion, the

government does not breach the agreement by failing to file such a motion, and the

district court has no jurisdiction to review the claim of breach. See Forney, 9 F.3d

at 1500-02.

       The Supreme Court has held that we also “have authority to review a

prosecutor’s refusal to file a substantial-assistance motion and to grant a remedy if

they find that the refusal was based on an unconstitutional motive,” like “race or


       1
         In Eberhart v. United States, __ U.S. __, 126 S. Ct. 403, 405, 163 L. Ed. 2d 14 (2005), the
Supreme Court held that the time limitations for filing a motion for a new trial under Fed. R. Crim.
P. 33 were not jurisdictional, but instead, were non-jurisdictional claim-processing rules. The
Supreme Court did not address Rule 35, and neither party cites Eberhart in the instant case. We
note that even if Eberhart applies to the time limitations in Rule 35(b), it has no bearing on the
outcome of this appeal and the term “jurisdiction” is used here for convenience.

                                                 3
religion,” or was not “rationally related to any legitimate [g]overnment end.”

Wade, 504 U.S. at 185-86, 112 S. Ct. at 1843-44. A defendant who merely claims

to have provided substantial assistance or who makes only generalized allegations

of improper motive is not entitled to a remedy or even to discovery or an

evidentiary hearing. Id. at 186, 112 S. Ct. at 1844. Thus, judicial review is

generally appropriate only when “there is an allegation and a substantial showing

that the prosecution refused to file a substantial assistance motion because of a

constitutionally impermissible motivation.” Forney, 9 F.3d at 1502.

      Though it is unclear to us on what grounds the district court denied

Rojas-Santana’s motion for lack of jurisdiction as its order contained no factual

reasons or legal analysis, the record clearly reflects that the district court had no

jurisdiction to entertain Rojas-Santana’s motion. To the extent that Rojas-Santana

alleges a plea breach, the agreement clearly stated that the government was not

required to make a substantial assistance motion and Rojas-Santana acknowledged

this. Since the government only had to “consider” filing a substantial assistance

motion, it did not breach the agreement by failing to file such a motion, and the

district court had no jurisdiction to review the claim of breach. See Forney, 9 F.3d

at 1500-02. Thus, because the plain language of Rojas-Santana’s plea agreement

provided only that the government would consider whether his aid qualified for



                                            4
substantial assistance, there was no plea breach and the district court had no

jurisdiction to consider his claim.

      Absent a threshold showing of plea breach, the only way the district court

would have had any power to act on Rojas-Santana’s claim under Rule 35 was if

he alleged an unconstitutional motive. Rojas-Santana neither alleged nor made a

substantial showing that the government’s refusal to file a substantial assistance

motion, either before or after sentencing, was based on suspect reasons, such as his

race or religion, or that its refusal was not related to a legitimate government end.

Instead, he merely claimed that he provided substantial assistance and generally

alleged that the government breached its plea agreement with him and acted in bad

faith by not filing a substantial assistance motion, and this does not entitle him to

relief. See Wade, 504 U.S. at 186, 112 S. Ct. at 1844. As such, there remains no

basis for the district court’s review of Rojas-Santana’s motion. See id.

Consequently, despite Rojas-Santana’s request for an evidentiary hearing, he was

not entitled to one because he did not allege that the government’s refusal to file a

substantial assistance motion was based on an impermissible, unconstitutional

motive, and “[a] claim that a defendant merely provided substantial assistance will

not entitle a defendant to . . . an evidentiary hearing.” See id.

      Accordingly, because Rojas-Santana cannot show that he was entitled to



                                            5
judicial review of the government’s refusal to file a substantial assistance motion,

we affirm the district court’s order denying Rojas-Santana’s post-judgment motion

for court intervention.

      AFFIRMED.




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