                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0732n.06
                            Filed: October 11, 2007

                                           No. 05-6474

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                            )
                                                     )      ON APPEAL FROM THE UNITED
       Plaintiff-Appellee,                           )      STATES DISTRICT COURT FOR
                                                     )      THE MIDDLE DISTRICT OF
v.                                                   )      TENNESSEE
                                                     )
ERROL EUGENE WASHINGTON,                             )                    OPINION
                                                     )
       Defendant-Appellant.                          )




BEFORE:        COLE and COOK, Circuit Judges; FROST, District Judge.*


       GREGORY L. FROST, District Judge. Appellant, Errol Eugene Washington, a federal

prisoner proceeding pro se, appeals a district court order denying his motion to compel the

government to file a Fed. R. Crim. P. 35(b) motion for reduction of sentence. For the reasons that

follow, this Court AFFIRMS the order of the district court.

                                       I. BACKGROUND

       On May 1, 1995, following a jury trial, Washington was found guilty of conspiracy to

distribute crack cocaine in violation of 21 U.S.C. § 846, possession with intent to distribute crack

cocaine in violation of 21 U.S.C. § 841(a)(1), aiding and abetting in violation of 18 U.S.C. § 2,

and carrying a firearm during the possession with intent to distribute crack cocaine in violation of


       *
          The Honorable Gregory L. Frost, United States District Judge for the Southern District of
Ohio, sitting by designation.

                                                 1
18 U.S.C. § 924(c). Washington was sentenced to serve a total of 295 months of imprisonment,

serve a total of five years of supervised release, and pay a $150 special assessment for his crimes.

This Court affirmed Washington’s convictions and sentences on October 8, 1997. United States

v. Washington, 127 F.3d 510 (6th Cir. 1997). The United States Supreme Court denied

Washington’s petition for a writ of certiorari on June 22, 1998. Washington v. United States, 524

U.S. 940 (1998).

       On June 3, 1999, Washington filed a motion to vacate, set aside or correct sentence

pursuant to 28 U.S.C. § 2255, which the district court denied on March 15, 2001. On July 2,

2003, the district court granted Washington’s motion for reconsideration, but denied his motion

to vacate and denied his request for a certificate of appealability. The district court denied

Washington’s motion for a new trial on August 4, 2003. This Court denied Washington’s

application for a certificate of appealability on August 27, 2004.

       On July 29, 2005, Washington filed the instant motion to compel the government to file a

Rule 35(b) motion for reduction of sentence. The district court denied Washington’s motion on

September 8, 2005, and closed the case. Washington filed a timely appeal. He requests “leave

to proceed in fictitious name.” He has also filed two letters of supplemental citation.

                                         II. ANALYSIS

       This Court reviews a district court order denying a motion to compel the filing of a Rule

35(b) motion for an abuse of discretion. See United States v. Marquez, 198 F. App’x 678, 678-

79 (9th Cir. 2006); cf. United States v. Blood, 435 F.3d 612, 627 (6th Cir. 2006) (applying

standard to motion to compel production of documents); Ventura v. Cincinnati Enquirer, 396

F.3d 784, 789 (6th Cir. 2005) (applying standard to motion to compel discovery). But see United

States v. Forney, 9 F.3d 1492, 1498 (11th Cir. 1993) (conducting de novo review in Rule 35(b)


                                                  2
motion case). An abuse of discretion has been defined as “ ‘a definite and firm conviction that

the trial court committed a clear error of judgment.’ ” United States v. Burns, 298 F.3d 523, 543

(6th Cir. 2002) (quoting Logan v. Dayton Hudson Corp., 865 F.2d 789, 790 (6th Cir. 1989)).

       Rule 35(b) allows a district court to reduce a defendant’s sentence based upon such

defendant’s “subsequent substantial assistance in the investigation or prosecution of another

person who has committed an offense.” United States v. Bagnoli, 7 F.3d 90, 92 (6th Cir. 1993).

A defendant’s sentence may be reduced “more than one year after sentence” if the government

moves for a sentence reduction and if the substantial assistance given involves certain specified

information. Fed. R. Crim. P. 35(b)(2). The government’s refusal to file a Rule 35(b) motion is

not subject to judicial review unless the defendant makes a substantial threshold showing that the

government’s decision was based upon an unconstitutional motive. See Wade v. United States,

504 U.S. 181, 185-86 (1992) (government’s refusal to seek a downward departure under USSG §

5K1.1); Bagnoli, 7 F.3d at 92 (government’s refusal to move for a downward departure under 18

U.S.C. § 3553(e) and USSG § 5K1.1).

       Upon review, this Court concludes that the district court did not abuse its discretion by

denying Washington’s motion to compel the government to file a Rule 35(b) motion. First, the

parties did not execute a plea agreement or otherwise agree that a Rule 35(b) motion would be

contemplated by the government. In fact, the record indicates that the Tennessee Assistant

United States Attorney (“AUSA”) did not agree to file a Rule 35(b) motion on Washington’s

behalf. Second, the record also indicates that the Florida AUSA notified the Tennessee AUSA of

the assistance provided by Washington and his sister in a Florida drug investigation but did not

demand, or even recommend, that a Rule 35(b) motion be made. Third, although he has pointed

to a potentially unconstitutional motive, Washington has offered no evidence that the Tennessee


                                                3
AUSA’s refusal to file a Rule 35(b) motion on his behalf was not based on a separate and distinct

constitutional motive the government offered. Under these circumstances, the government was

not obligated to file and Washington was not entitled to a Rule 35(b) motion for a reduction of

sentence based upon Washington’s alleged post-judgment substantial assistance.

       This Court further concludes that Washington was not entitled to an evidentiary hearing

concerning his motion to compel. “[A] claim that a defendant merely provided substantial

assistance will not entitle a defendant to a remedy . . . or an evidentiary hearing.” Wade, 504

U.S. at 186. Instead, a defendant is entitled to an evidentiary hearing “only if he makes a

substantial threshold showing of an unconstitutional motive.” Bagnoli, 7 F.3d at 92.

       Washington failed to make a substantial showing that the government had an

unconstitutional motive for refusing to file a Rule 35(b) motion for reduction of his sentence.

The government argued that it did not file a Rule 35(b) motion because the substantial assistance

provided by Washington involved a third party in another jurisdiction, which the government

asserted would complicate its ability to regulate that operation and to protect those involved.

Washington has offered no evidence to refute the government’s assertion. Even if this Court

were to accept that Washington’s attempts to vacate his conviction were an impermissible reason

for the government’s failure to file–a proposition upon which the Court need not opine

here–Washington still ultimately failed to produce evidence warranting a hearing or relief.

       The Court reaches this conclusion because the existence of the independent “outside-this-

jurisdiction” ground separately supports the government’s decision not to file a Rule 35(b)

motion and prevents Washington from being able to make a showing of an unconstitutional

motive. See United States v. Capps, 140 F. App’x 911, 913 (11th Cir. 2005) (the presence of an

independent, constitutional motive upon which the government could rely precludes a showing of


                                                 4
an unconstitutional motive). Although the trial court’s September 8, 2005 margin-notation order

was notably spartan, it still nonetheless expressly adopted the rationale of the government’s

opposition briefing. That briefing included the finding of the independent and legitimate ground

for denying Washington his motion.

                                      III. CONCLUSION

       For the foregoing reasons, the Court DENIES Washington’s motion for leave to proceed

in fictitious name and AFFIRMS the district court’s order.




                                                 5
