                                                                 [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________                     FILED
                                                               U.S. COURT OF APPEALS
                                  No. 09-16365                   ELEVENTH CIRCUIT
                                                                     JULY 20, 2010
                              Non-Argument Calendar
                                                                      JOHN LEY
                            ________________________
                                                                       CLERK

                     D. C. Docket No. 09-00280-CR-T-27TBM

UNITED STATES OF AMERICA,


                                                                    Plaintiff-Appellee,

                                        versus

ALLAN RAY STEPHENS,
a.k.a. Anthony Rembrant,

                                                                Defendant-Appellant.

                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                         _________________________
                                  (July 20, 2010)

Before TJOFLAT, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

      Allan Ray Stevens, an alien, appeals his 24-month sentence following a

bench trial in which the district court found him guilty of illegally re-entering the
United States after having been deported subsequent to a conviction of an

aggravated felony in violation of 8 U.S.C. § 1326(a), (b)(2) and of illegally

entering the United States in violation of 8 U.S.C. §§ 1325(a)(1) and 1329. He

contends that the district court erred by concluding that it lacked authority to order

the government to file an acceptance of responsibility motion to adjust his offense

level pursuant to U.S.S.G. § 3E1.1(b) absent a substantial showing of an

unconstitutional motivation.

      We review the denial of an acceptance of responsibility reduction for clear

error. United States v. Knight, 562 F.3d 1314, 1322 (11th Cir.), cert. denied, 130

S.Ct. 192 (2009). The defendant bears the burden of showing that he is entitled to

a reduction for acceptance of responsibility and must present more than a guilty

plea. United States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999).

      Under U.S.S.G. § 3E1.1(b), a defendant who “clearly demonstrates

acceptance of responsibility for his offense,” see U.S.S.G. § 3E1.1(a), is entitled to

an additional one-level reduction in his offense level if, among other conditions,

the government makes a motion “stating that the defendant has assisted authorities

in the investigation or prosecution of his own misconduct by timely notifying

authorities of his intention to enter a plea of guilty, thereby permitting the

government to avoid preparing for trial.” U.S.S.G. § 3E1.1(b). The commentary



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to this section explains the rationale for requiring the government to file a motion:

“Because the Government is in the best position to determine whether the

defendant has assisted authorities in a manner that avoids preparing for trial, an

adjustment under subsection (b) may only be granted upon a formal motion by the

Government at the time of sentencing.” U.S.S.G. § 3E1.1 comment. (n. 6). We

have rejected a defendant’s claim for an additional one-level reduction where there

was no government motion filed in support of such reduction. United States v.

Wade, 458 F.3d 1273, 1282 (11th Cir. 2006).

      We have not yet decided under what circumstances we may review the

government’s decision not to file a § 3E1.1(b) motion. However, in the related

context of government motions under U.S.S.G. § 5K1.1 for the substantial

assistance the defendant provided, we may review the government’s decision not to

file such a motion only for unconstitutional motive. See United States v. Nealy,

232 F.3d 825, 831 (11th Cir. 2000) (citing Wade v. United States, 504 U.S. 181,

112 S.Ct. 1840, 118 L.Ed.2d 524 (1992)).

      The Supreme Court in Wade concluded that under 18 U.S.C. § 3553(e) and

U.S.S.G. § 5K1.1, the government has “a power, not a duty, to file a motion when

a defendant has substantially assisted.” Wade, 504 U.S. at 185, 112 S.Ct. at 1843.

Nevertheless, the Court concluded “that a prosecutor’s discretion when exercising



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that power is subject to constitutional limitations that district courts can enforce,”

and held “that 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.” Id. at 185-86, 112 S.Ct.

at 1843-44. “It follows that a claim that a defendant merely provided substantial

assistance will not entitle a defendant to a remedy or even to discovery or an

evidentiary hearing. Nor would additional but generalized allegations of improper

motive. Indeed, . . . a defendant has no right to discovery or an evidentiary hearing

unless he makes a substantial threshold showing.” Id. at 186, 112 S.Ct. at 1844

(quotation and citations omitted).

      Because the government did not file a § 3E1.1(b) motion, which under the

plain language of the guideline is a prerequisite for an additional reduction, the

district court did not err in concluding that it was without authority to grant the

additional reduction. See Wade, 458 F.3d at 1282. Even assuming arguendo that

the review framework for a § 5K1.1 motion applies in the § 3E1.1(b) context,

Stephens presented no evidence showing that the type of unconstitutional motive

contemplated by Wade was involved here. Rather, the government stated at

sentencing that it exercised its prerogative not to file a § 3E1.1(b) motion for the

legitimate reason that, even though Stephens had stipulated to the facts necessary



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to find him guilty, it still had to prepare for the possibility of a jury trial. Because

he made no showing of improper motive, the district court did not err by

concluding that it was without authority to order the government to file a

§ 3E1.1(b) motion or to grant him an additional reduction for acceptance of

responsibility.

      AFFIRMED.




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