           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            March 5, 2009
                                     No. 08-40141
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

YESENIA LEAL

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:99-CR-372-7


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Yesenia Leal, federal prisoner # 92524-079, appeals the district court’s
denial of her motion to compel the Government to file a motion for reduction of
sentence pursuant to F ED. R. C RIM. P. 35(b).
       Rule 35(b) does not provide a jurisdictional basis upon which to entertain
Leal’s motion. See United States v. Early, 27 F.3d 140, 141-42 (5th Cir. 1994).
The Government’s refusal to file a Rule 35 motion is reviewable only if it is based
on an unconstitutional motive, which Leal does not allege. See United States v.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                No. 08-40141

Sneed, 63 F.3d 381, 389 n. 6 (5th Cir.1995). Leal’s motion is thus unauthorized
and the district court and this court both lack jurisdiction to consider it.
Accordingly, the appeal is DISMISSED for lack of jurisdiction.




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