            Case: 12-12612   Date Filed: 04/26/2013   Page: 1 of 6


                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-12612
                          Non-Argument Calendar
                        ________________________

                  D.C. Docket No. 3:96-cr-00080-LC-MD-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                  versus

STEVEN ANTHONY GRAHAM,

                                                          Defendant-Appellant.

                        ________________________

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

                               (April 26, 2013)

Before TJOFLAT, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:

     Steven Anthony Graham, a federal prisoner proceeding pro se, appeals the

district court’s denial of his motion titled “Motion to Review Government’s
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Refusal to Consider Defendant’s Requests to Provide Substantial Assistance After

Jury Trial.” In 1997, Graham was found guilty after a jury trial of conspiracy to

possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C.

§ 846. Graham filed the instant motion in 2012, pursuant to 18 U.S.C. § 3582(b)

and (c), and Fed.R.Crim.P. 35(b), alleging that, at sentencing, the government

responded to his request to provide substantial assistance by saying that it was “too

late,” since Graham had opted for trial. Graham alleged that the government’s

refusal to consider his request was “retaliatory and vindictive,” and sought to

punish him for exercising his constitutional right to a jury trial. The district court

denied Graham’s motion, and two days after that order, the government responded

that the district court lacked jurisdiction to consider Graham’s motion.

      On appeal, Graham argues that: (1) the district court erred in failing to hold

an evidentiary hearing, and determining that it lacked jurisdiction under Rule

35(b), because he is not required to have provided substantial assistance to receive

an evidentiary hearing on the lack of the opportunity to provide his assistance; and

(2) the court violated his due process rights and abused its discretion by improperly

incorporating the government’s untimely response into the proceedings without

affording Graham an opportunity to reply. After careful review, we affirm.

      We review a district court’s jurisdiction de novo. United States v. Perez,

956 F.2d 1098, 1101 (11th Cir. 1992). Except to the extent provided by federal


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statutory provisions controlling sentencing and the Federal Rules of Criminal

Procedure, district courts do not have the authority to modify a prisoner’s sentence.

United States v. Diaz-Clark, 292 F.3d 1310, 1315-18 (11th Cir. 2002). According

to Rule 35(b), a district court may, upon motion of the government, reduce or

correct a defendant’s sentence after sentencing if the defendant provided

substantial   assistance   in    investigating   or   prosecuting    another    person.

Fed.R.Crim.P. 35(b). As a general principle, however, the government has “a

power, not a duty, to file a motion when a defendant has substantially assisted.”

Wade v. United States, 504 U.S. 181, 185 (1994).            Absent a motion by the

government, a federal court has no authority to grant a sentence reduction. United

States v. Dorsey, 554 F.3d 958, 961 (11th Cir. 2009).

      Moreover, given the discretionary nature of a Rule 35 motion, federal courts

only have authority to review a prosecutor’s refusal to file a substantial-assistance

motion or grant a remedy if the refusal was based on an unconstitutional motive,

such as race or religion.       Wade, 504 U.S. at 185-86.       While “a showing of

assistance is a necessary condition for relief, it is not a sufficient one.” Id. at 187.

Judicial review is 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, such as race or religion.” United

States v. Forney, 9 F.3d 1492, 1502 (11th Cir. 1993) (emphasis omitted). The only


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possible exceptions to this limitation on judicial authority are when a plea

agreement unequivocally requires the government to file a substantial-assistance

motion, or where an oral promise to do so induces a defendant to plead guilty. Id.

at 1499 n.2, 1502 n.5; see also Santobello v. New York, 404 U.S. 257, 262 (1971)

(“[W]hen a plea rests in any significant degree on a promise or agreement of the

prosecutor, so that it can be said to be part of the inducement or consideration, such

promise must be fulfilled”). 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.” Dorsey, 554 F.3d at 961.

      As an initial matter, because Graham failed to raise any argument on appeal

concerning the district court’s denial of his motion for reconsideration, he has

abandoned this issue. United States v. Cunningham, 161 F.3d 1343, 1344 (11th

Cir. 1998) (holding that when a defendant fails to offer argument on an issue, that

issue is abandoned). Additionally, although Graham asserts that the district court

improperly incorporated the government’s response to his motion into the record,

which was filed after the district court issued its order, his argument is without

merit. As the record shows, the government filed its response to Graham’s motion

on April 6, 2012, two days after the court issued its order, because it was unaware

that the court already had entered its order. Moreover, Graham had the opportunity

to challenge the government’s arguments in his motion for reconsideration, and,


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therefore, he failed to show that he was prejudiced by the government’s filing its

response after the issuance of the court’s order.

      As for the merits of his claims, the district court properly denied Graham’s

Rule 35 motion, since the court lacked the authority to grant a sentence reduction

or to compel the government to file a substantial-assistance motion. Graham never

entered into a plea agreement with the government, but instead was convicted by a

jury in 1997. It is undisputed that the government never filed a Rule 35 motion to

reduce Graham’s sentence, and that Graham did not actually provide substantial

assistance to the government.     Wade, 504 U.S. at 187. Instead, Graham argues

that the government wrongfully refused to allow him the opportunity to provide

substantial assistance.

      Assuming that the Forney exceptions apply here -- even though Graham was

convicted after a jury trial and did not have a plea agreement requiring the

government to consider filing a substantial-assistance motion -- Graham has failed

to make a substantial showing that the government’s refusal to file a substantial-

assistance motion was based on a constitutionally impermissible motive, such as

his race or religion. See Forney, 9 F.3d at 1502. Graham vaguely alleges that the

government made a single comment at his sentencing hearing that Graham was

“too late” to be considered for a motion for substantial assistance because he had

opted to go to trial. But even if Graham had presented an unconstitutional motive


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sufficient to support review, he has failed to put forth any evidence to demonstrate

that the government actually possessed or acted based on this impermissible

motive. As a result, he has failed to provide a “substantial showing,” which

precludes the district court from reviewing the government’s decision not to file a

Rule 35(b) motion.      See id.    Furthermore, because there was no substantial

showing of an unconstitutional motive, the district court did not abuse its discretion

in declining to conduct an evidentiary hearing on Graham’s motion. 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).

      Accordingly, the district court did not err in denying Graham’s instant

motion for lack of jurisdiction, and we affirm.

      AFFIRMED.




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