                                                                   [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                   U.S. COURT OF APPEALS
                                No. 11-11931         ELEVENTH CIRCUIT
                            Non-Argument Calendar    SEPTEMBER   22, 2011
                          ________________________        JOHN LEY
                                                           CLERK
                  D.C. Docket No. 8:06-cr-00481-JDW-TGW-3

UNITED STATES OF AMERICA,

                                   llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

                                      versus

ROBIS OSUEL SOLIS-CACERES,

                                lllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                              (September 22, 2011)

Before HULL, PRYOR and BLACK, Circuit Judges.

PER CURIAM:

      Federal prisoner Robis Solis-Caceres appeals the denial of his post-

judgment motion to compel the Government to file a motion for reduction of
sentence pursuant to Federal Rule of Criminal Procedure 35(b). Solis-Caceres

contends the district court abused its discretion both by denying his motion to

compel and by failing to conduct an evidentiary hearing on his claims. He asserts

the Government’s refusal to file a Rule 35(b) motion on his behalf violated his

equal protection rights because it has filed Rule 35(b) motions in similar

circumstances for others. After review, we affirm the district court.

      After sentencing, a court may reduce a defendant’s sentence where the

government moves for such a reduction based on the defendant’s substantial

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

Generally, the government has the power, but not the duty, to file such a motion.

Wade v. United States, 504 U.S. 181, 185 (1992) (analyzing substantial assistance

motions under § 5K1.1 and 18 U.S.C. § 3553(e)); see also United States v.

McNeese, 547 F.3d 1307, 1309 (11th Cir. 2008) (applying Wade to Rule 35(b)

motions).

      Where the filing of a Rule 35(b) motion is discretionary, “federal district

courts 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.” Wade, 504 U.S. at 185-86. “[J]udicial review is

appropriate only when there is an allegation and a substantial showing that the

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prosecution refused to file a substantial assistance motion because of a

constitutionally impermissible motivation.” United States v. Dorsey, 554 F.3d

958, 961 (11th Cir. 2009) (emphasis in original) (quotations omitted). A

defendant is not entitled to an evidentiary hearing simply because he “claims to

have provided substantial assistance or . . . makes only generalized allegations of

an improper motive.” Id.

      The Government did not promise to file a Rule 35(b) motion. The plea

agreement stated the Government would “consider” filing a motion and that the

power to make such a determination “rests solely with the United States Attorney

for the Middle District of Florida.” At Solis-Caceres’s plea colloquy, the

magistrate judge expressly stated that “all that the Government is agreeing to do is

consider filing the motion,” and “[t]hey’re not promising that they will file the

motion.” Solis-Caceres stated that he understood. Because the Government’s

filing of a Rule 35(b) motion was discretionary, the district court could review the

Government’s refusal to file only if Solis-Caceres alleged an unconstitutional

motive for the refusal.

      Construing his arguments liberally, Solis-Caceres claims his equal

protection rights were violated because some prisoners received Rule 35(b)

motions, but he was denied such a motion because the Government was vindictive,

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and sought to punish him for filing his requests for medical examinations and

§ 2255 motion to vacate. However, Wade’s examples of unconstitutional motives

concern protected characteristics and Solis-Caceres has not shown the

Government’s alleged retaliatory motive stems from a similarly arbitrary

classification. See Wade, 504 U.S. at 185-86 (stating unconstitutional motives

would include a failure to file because of defendant’s race or religion). Even if,

assuming arguendo, Solis-Caceres has presented an unconstitutional motive

sufficient to support review, he has put forth no evidence the Government actually

possessed or acted under this vindictive motive. As such, he has failed to provide

a “substantial showing,” precluding the district court from reviewing the

Government’s decision not to file a Rule 35(b) motion. See Dorsey, 554 F.3d at

961. As such, the district court did not err in denying the motion to compel.

      Furthermore, the district court did not abuse its discretion in declining to

conduct evidentiary hearings. See United States v. Winfield, 960 F.2d 970, 972

(11th Cir. 1992) (reviewing a district court’s decision not to hold an evidentiary

hearing for abuse of discretion). There was no substantial showing of an

unconstitutional motive, and thus Solis-Caceres was not entitled to an evidentiary

hearing. See Dorsey, 554 F.3d at 961. Therefore, we affirm the district court.

      AFFIRMED.

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