                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                              No. 06-12204                 JANUARY 10, 2008
                          Non-Argument Calendar            THOMAS K. KAHN
                                                               CLERK
                        ________________________

                D. C. Docket No. 03-00072-CR-FTM-29-SPC

UNITED STATES OF AMERICA,


                                                     Plaintiff-Appellee,

                                   versus

ALPHONSO JAMES, JR.,

                                                    Defendant-Appellant.


                        ________________________

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

                             (January 10, 2008)

Before ANDERSON, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Alphonso James, Jr. appeals his 180-month sentence for knowingly
possessing a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and

924(e), after having been convicted of a crime punishable by imprisonment for a

term exceeding one year. On appeal, James argues that his sentence must be

vacated and remanded for resentencing because the district court failed to consider

a downward departure for substantial assistance pursuant to Wade v. United States,

504 U.S. 181, 112 S. Ct. 1840, 118 L. Ed. 2d 524 (1992). James asserts that the

government withheld a U.S.S.G. § 5K1.1 motion to penalize his failure to sign a

plea agreement. He maintains that there is a constitutional and statutory right to

plead guilty without a plea agreement. Alternatively, he suggests that there is no

rational basis for the government’s policy of only filing § 5K1.1 motions when

defendants enter into plea agreements. Thus, he concludes that the district court

should have considered imposing a sentence below the statutory mandatory

minimum.

      Generally, whether a district court may depart downward from the Guideline

range under § 5K1.1 in the absence of a motion by the government is a question of

law subject to de novo review. United States v. Dorsey, 497 F.3d 1221, 1224 (11th

Cir. 2007). Because James did not allege that the government had an

unconstitutional motive before the district court, however, we will review only for

plain error. United States v. Ward, 486 F.3d 1212, 1221 (11th Cir.), cert. denied,



                                          2
— U.S. —, 128 S. Ct. 398, — L. Ed. 2d — (2007). When reviewing for plain

error, we cannot reverse “unless there is: (1) error, (2) that is plain, and (3) that

affects substantial rights.” Id. (internal quotation marks omitted). If these

conditions are met, we may then exercise our discretion to notice a forfeited error,

but only if “the error seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. (internal quotation marks omitted). Furthermore, an

error is plain only if it is “clear under current law.” United States v. Chau, 426

F.3d 1318, 1322 (11th Cir. 2005) (per curiam) (internal quotation marks omitted).

      Section 5K1.1 of the Guidelines provides that “[u]pon motion of the

government stating that the defendant has provided substantial assistance in the

investigation or prosecution of another person who has committed an offense, the

court may depart from the guidelines.” U.S.S.G. § 5K1.1. Section 5K1.1 confers

the power, but not the duty, to file a motion where a defendant has provided

substantial assistance. Dorsey, 497 F.3d at 1224. The district court typically

cannot grant a downward departure under § 5K1.1 absent a motion by the

government. Id.

      Where the government refuses to file a motion based on an unconstitutional

motive such as race or religion, however, the district court has authority to review

and remedy the prosecutor’s decision. Wade, 504 U.S. at 185–86, 112 S. Ct. at



                                            3
1843–44. We recently clarified, moreover, that “refusing to file a § 5K1.1 motion

in retribution for exercising the Sixth Amendment right to a trial by jury is an

unconstitutional motive under Wade.” Dorsey, 497 F.3d at 1225. A mere claim

that a defendant has provided substantial assistance or a general allegation of an

improper motive, however, will not warrant a remedy or even an evidentiary

hearing. Wade, 504 U.S. at 186, 112 S. Ct. at 1844. Review is only appropriate

where the defendant alleges and makes a substantial showing that the prosecution

refused to file a § 5K1.1 motion because of a constitutionally impermissible

motive. Dorsey, 497 F.3d at 1225.

      Upon review of the record and the parties’ briefs, we discern no reversible

error. James essentially argues that in refusing to file a § 5K1.1 motion, the

government unconstitutionally penalized him for exercising his right to plead

guilty under the Sixth Amendment. This argument is not clearly resolved by “the

explicit language of a statute or rule.” Chau, 426 F.3d at 1322 (internal quotation

marks omitted). Nor is it clearly resolved by the language of the Sixth

Amendment. Thus, the alleged error committed by the district court can be “plain”

only if “precedent from the Supreme Court or this Court directly resolv[es] it.” Id.

James relies on no direct authority for his assertion that the government’s refusal to

move for a § 5K1.1 motion was based on an unconstitutional motive, and neither



                                           4
Wade nor Dorsey directly resolved the question of whether a district court has the

authority to grant a downward departure where the government refuses to file a

§ 5K1.1 motion because the defendant did not sign a plea agreement.

      Contrary to James’s argument, moreover, we have not construed Wade

broadly enough to permit a court to grant a defendant relief when, absent an

unconstitutional motive such as race, religion, or another arbitrary classification,

the government’s refusal to move for a reduction is not rationally related to any

legitimate government end. See United States v. Nealy, 232 F.3d 825, 831 (11th

Cir. 2000) (limiting review of government’s refusal to file substantial assistance

motions to claims of unconstitutional motive); United States v. Forney, 9 F.3d

1492, 1503 n.4 (11th Cir. 1993) (limiting review of failure to file substantial

assistance motion to unconstitutional motive and acknowledging the proper

“reluctance to enter into the prosecutorial discretion arena of the executive

branch”). Therefore, even if we were to assume that the district court erred in

failing to consider a downward departure for substantial assistance, any such error

was not “plain” because it was not clear under existing law. See Chau, 426 F.3d at

1322. Accordingly, we affirm.

      AFFIRMED.




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