                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS
                                                                            FILED
                                   FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                                            U.S.
                                    ________________________ ELEVENTH CIRCUIT
                                                                   OCTOBER 31, 2011
                                            No. 10-14728              JOHN LEY
                                        Non-Argument Calendar           CLERK
                                      ________________________

                               D.C. Docket No. 1:91-cr-00655-FAM-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                versus

CHARLES CLARK,
a.k.a. Bunky Brown,

llllllllllllllllllllllllllllllllllllllll                           Defendant-Appellant.

                                     ________________________

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

                                           (October 31, 2011)

Before EDMONDSON, BARKETT and KRAVITCH, Circuit Judges.

PER CURIAM:

         Charles Clark, a federal prisoner proceeding pro se, appeals from the district
court’s denial of his motion to compel the government to file a motion for a

sentencing reduction on his behalf, pursuant to Fed. R. Crim. P. 35(b). Clark

argued that, despite rendering substantial assistance to the government, the

government refused to file a Rule 35(b) motion as punishment for his earlier

decision to proceed to trial.

      We review de novo whether the district court can compel the government to

file a substantial assistance motion. See United States v. Forney, 9 F.3d 1492,

1498 (11th Cir. 1993). Generally, the government has the power, but not the duty,

to file a motion to reduce sentence when a defendant has provided substantial

assistance to the government. Wade v. United States, 504 U.S. 181, 185 (1992);

United States v. McNeese, 547 F.3d 1307, 1309 (11th Cir. 2008). The

government’s refusal to file a Rule 35(b) motion can be reviewed by the district

court, and the district court can grant relief, only if it finds that the government’s

refusal was based on an unconstitutional motive, such as race or religion. Wade,

504 U.S. at 185-86.

      In this case, the district court properly denied Clark’s motion to compel the

government to file a Rule 35(b) motion. This is so because, even assuming that

Wade prohibits the government from retaliating against defendants who exercise

their constitutional right to proceed to trial, Clark failed to make a “substantial

                                           2
showing” that the government harbored such a motive. See United States v.

Dorsey, 554 F.3d 958, 961 (11th Cir. 2009). Accordingly, we affirm.

      AFFIRMED.




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