                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                       FILED
                      ________________________
                                                             U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                             No. 04-10576
                                                                   JUNE 17, 2005
                         Non-Argument Calendar                  THOMAS K. KAHN
                       ________________________                      CLERK

                    D.C. Docket No. 98-00076-CR-1-CB


UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                   versus

JAMES MOORE,

                                                      Defendant-Appellant.

                      __________________________

             Appeal from the United States District Court for the
                        Southern District of Alabama
                       _________________________
                              (June 17, 2005)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
       James Moore appeals the district court’s ruling permitting the Government

to withdraw its Federal Rule of Criminal Procedure 35(b) substantial-assistance

motion. We affirm the district court.

                                      I. BACKGROUND

       After a grand jury charged Moore and a codefendant with conspiracy to

possess with intent to distribute more than 50 grams of cocaine base, 21 U.S.C.

§§ 841(a)(1) and 846; possession with intent to distribute 50 grams of cocaine

base, 21 U.S.C. § 841(a)(1) (Count Two); and possession of a firearm during a

drug trafficking crime,1 18 U.S.C. § 924(c)(1) (Count Three); Moore agreed to

plead guilty to Counts Two and Three in return for the dismissal of Count One.

The plea agreement provided that “[i]f the defendant cooperates truthfully and

completely with law enforcement, and his cooperation substantially assists the

United States in the prosecution of another for a felony offense, the United States

will move the sentencing court for a downward departure from the defendant’s

guideline range.”




       1
           The indictment actually refers to a crime of violence, rather than a drug trafficking
crime, but the parties have consistently treated this as a drug-related offense and the indictment
identifies the underlying crimes as Counts One and Two.
                                                 2
       Moore’s presentence investigation report (PSI) set his total offense level at

35 for Count Two2 and noted that a consecutive 60-month sentence was required

for Count Three. Combined with a criminal history category of II, Moore’s

guideline sentence range was 188-235 months’ incarceration for Count Two to be

followed by 60 months’ incarceration for Count Three.

       At sentencing, the district court adopted the PSI and the specified sentence

range. The Government moved for a downward departure, pursuant to U.S.S.G.

§ 5K1.1, stating Moore had provided substantial assistance in convicting his

codefendant. The Government recommended he receive a sentence reduction of

25 percent or less, indicating Moore’s codefendant had been a relatively minor

player in the conspiracy. Moore asserted he had provided assistance in other

cases. The Government responded that Moore might have been willing to provide

further assistance, but had not actually provided further assistance. The district

court granted the substantial-assistance motion, decided to grant a larger reduction

than the Government requested, and sentenced Moore to a total of 162 months’

incarceration, consisting of 102 months’ imprisonment for the drug count and a

consecutive 60 months’ imprisonment for the firearm count.


       2
           Moore’s base offense level was 38, pursuant to U.S.S.G. § 2D1.1(b)(1), based on a
drug quantity of 1.5 kilograms of cocaine base. The PSI reached a total offense level of 35 after
subtracting 3 levels for acceptance of responsibility, U.S.S.G. § 3E1.1.
                                                3
      Moore did not pursue a direct appeal. Approximately 11 months after

Moore was sentenced, the Government filed a motion, pursuant to Federal Rule of

Criminal Procedure 35(b), stating that Moore had continued to cooperate after

sentencing and was continuing to cooperate at that time. The Government

indicated that it did not yet wish to request substantial-assistance relief for Moore,

but was filing the motion to toll the running of the one-year limitation period of

Rule 35. Subsequently, the Government moved to withdraw its Rule 35 motion on

the ground Moore had not provided substantial assistance.

      The district court granted the Government’s motion to withdraw the Rule 35

motion and, to the extent that Moore had his own request for substantial-assistance

relief pending, denied it as moot. Moore timely requested the district court

reconsider its ruling, alleging the Government was acting in bad faith. The court

denied Moore reconsideration.

      Moore asserts he provided information to the Government which assisted it

in the prosecution and sentencing of others. He contends the Government’s

withdrawal of the substantial-assistance motion constitutes a breach of the plea

agreement wherein the Government agreed to file a substantial-assistance motion

if he cooperated. He contends the Government acted in bad faith and with an

unconstitutional motive when it sought to withdraw its Rule 35 motion, and thus,

                                          4
should not have been permitted to do so. Moore provides no specific basis for his

allegations of unconstitutional motive. He argues the Government should be

required to resubmit the Rule 35 motion because the breach of a promise that

induces a guilty plea violates due process.3

                                        II. DISCUSSION

       Upon motion by the government, the district court may depart downward in

sentencing a defendant if the defendant has provided the government with

substantial assistance. 18 U.S.C. § 3553(e). When a defendant provides

substantial assistance, the government has the power, but not the duty, to file a

substantial-assistance motion. Wade v. United States, 112 S. Ct. 1840, 1843

(1992). We can review a prosecutor’s refusal to file such a motion only if the

refusal was based on an unconstitutional motive, such as racial or religious

discrimination. Id. at 1843–44. Judicial review is appropriate only when there is

an allegation and a substantial showing of the unconstitutional motive. United

States v. Forney, 9 F.3d 1498, 1502. Because substantial-assistance motions are



       3
           Moore also spends a great deal of his brief addressing the issue of drug quantity and the
effects of Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct.
738 (2005), thereon. Moore failed to raise this issue in the district court, and did not file a direct
appeal. We have held that Booker is not retroactive to 28 U.S.C. § 2255 cases on collateral
review. Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005). Similarly, Booker is not
retroactive in this case. Accordingly, Moore’s Booker claims are not properly before us and we
do not consider them.
                                                  5
within the government’s discretion, a defendant has no protected right which gives

rise to a due process claim. United States v. Alvarez, 115 F.3d 839, 841 (11th Cir.

1997).

      To the extent Moore contends the Government must be required to live up

to the obligations it took on in the plea agreement, the record demonstrates that it

did. The plea agreement, at most, required the Government to file a motion “for a

downward departure from the defendant’s guideline range” if Moore provided

substantial assistance. The Government moved for a downward departure at

sentencing, and, as a result, Moore received a total sentence of 162 months’

incarceration—86 months (more than 7 years) less than the bottom of his total

applicable guideline range (188 months for Count Two and a consecutive 60

months for Count Three). Moore, then, has no claim for specific enforcement of

the plea agreement.

      To the extent Moore seeks further relief on the ground that he has provided

additional substantial assistance, that claim is beyond our ability to review. Moore

has vaguely used the words “unconstitutional motive,” but has made no specific

allegations, much less a substantial showing of unconstitutional motive. See

Forney, 9 F.3d at 1502.

      AFFIRMED.

                                          6
