                     NONPRECEDENTIAL DISPOSITION
                       To be cited only in accordance with
                               Fed. R. App. P. 32.1



           United States Court of Appeals
                            For the Seventh Circuit
                            Chicago, Illinois 60604

                          Submitted February 21, 2007*
                           Decided February 26, 2007

                                     Before

                    Hon. FRANK H. EASTERBROOK, Chief Judge

                    Hon. RICHARD A. POSNER, Circuit Judge

                    Hon. TERENCE T. EVANS, Circuit Judge

No. 06-2403

UNITED STATES OF AMERICA,                     Appeal from the United States
    Plaintiff-Appellee,                       District Court for the Southern
                                              District of Illinois
      v.
                                              No. 96-30065-WDS
TONEY D. WHITEHEAD,
    Defendant-Appellant.                      William D. Stiehl,
                                              Judge.

                                   ORDER

      This appeal concerns the timeliness of Toney Whitehead’s attempt to secure a
sentence reduction under Federal Rule of Criminal Procedure 35(b). Whitehead
pleaded guilty to nine separate drug and gun charges and was sentenced to 322
months’ imprisonment in 1997. We dismissed his direct appeal and granted his
counsel’s motion to withdraw under Anders v. California, 386 U.S. 738 (1967). See
United States v. Whitehead, No. 97-2807, 1998 U.S. App. LEXIS 5561 (7th Cir.
March 12, 1998) (unpublished).



      *
        After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 06-2403                                                                      Page
                                                                                 2

       More than eight years after sentencing, in 2005 Whitehead, pro se, asked the
district court to compel the government to file a Rule 35 motion for a reduction of
sentence based on his substantial assistance to prosecutors. In his sworn affidavit
accompanying the motion, Whitehead says that “[a]pproximately one week after his
arrest” he provided “substantial assistance to authorities by conducting a proffer
and debriefing in which he implicated a number of other substantial narcotics
traffickers in the East St. Louis metropolitan area.” Whitehead swears that the
government promised him a sentence reduction based on his assistance, and he says
the government reneged on its agreement “without just cause.” The district court
denied Whitehead’s motion because he filed it more than one year after sentencing
and no exceptions to the one-year bar applied. See Fed. R. Crim. P. 35(b).

       Whitehead now argues that it would be unjust to deny him relief simply
because the government neglected to timely file a Rule 35 motion. He says the
district court should have ignored the timing issue and invoked its inherent power
to enforce contracts. The government responds with a motion to dismiss in which it
contends that the time constraints in Rule 35 preclude both the district court and
this court from reaching the merits of Whitehead’s motion.

       Rule 35(b) authorizes a district court to reduce a defendant’s sentence to
reward him for his substantial assistance only “[u]pon the government’s motion.”
Fed. R. Crim. P. 35(b). Normally the decision to file a Rule 35(b) motion rests
entirely in the prosecutor’s discretion, and a district court would not be empowered,
based on Rule 35(b) alone, to grant a Rule 35(b) motion brought by a defendant.
Nevertheless, there are enforceable limitations to a prosecutor’s discretion,
including when it has been bargained away in a plea agreement. See Santobello v.
New York, 404 U.S. 257, 262-63 (1977); United States v. Lezine, 166 F.3d 895, 903
(7th Cir. 1999); United States v. Smith, 953 F.2d 1060, 1065-66 (7th Cir. 1992).
And, as the Supreme Court explained in Wade v. United States, 504 U.S. 181, 186
(1992), “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. While Wade involved a
prosecutor’s refusal to file a U.S.S.G. § 5K1.1 motion at sentencing, we and our
sister circuits have treated § 5K1.1 and Rule 35(b) alike. See United States v. Doe,
940 F.2d 199, 203 n.7 (7th Cir. 1991) (citing cases); United States v. Moran, 325
F.3d 790, 793 (6th Cir. 2003); United States v. Marks, 244 F.3d 971, 973 n.1 (8th
Cir. 2001); United States v. Gangi, 45 F.3d 28, 30-31 (2d Cir. 1995) (citing cases).
And we have applied Wade to review a district court’s denial of a motion to compel a
Rule 35(b) motion. See United States v. Wilson, 390 F.3d 1003 (7th Cir. 2004); see
also Marks, 244 F.3d at 975.
No. 06-2403                                                                       Page
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       The problem for Whitehead is that under this circuit’s precedent, the district
court lacked jurisdiction to grant the ultimate remedy Whitehead seeks. Rule 35(b)
authorizes the district court to reduce a defendant’s sentence only upon the
government’s motion made within one year of sentencing (unless an exception
applies). We explained in United States v. McDowell, 117 F.3d 974, 980 (7th Cir.
1992), that the rule’s time limits are jurisdictional. Thus, even if everything
Whitehead says is true, the district court was not empowered to grant his Rule
35(b) motion because it is more than seven years late. (Whitehead did not ask the
government to file a “placeholder” motion within the one-year deadline to secure the
district court’s jurisdiction, as is routine. See, e.g., Wilson, 390 F.3d at 1007; United
States v. Hartwell, 448 F.3d 707, 718 (4th Cir. 2006).) Furthermore, even if after
Eberhart v. United States, 546 U.S. 12 (2005), the Rule 35(b) time limits are not
strictly “jurisdictional,” the government has asserted both here and in the district
court the defense of untimeliness, so it is proper to affirm the district court’s ruling
on that basis.

        Whitehead’s only hope for relief under Rule 35(b) is an exception to the one-
year deadline created by the December 2002 amendment to Rule 35 for information
supplied to the government that he did not know of, or the government could not
use, until more than a year after sentencing. Fed. R. Crim. P. 35(b)(2). Although
one circuit has found that the amendment applies to any Rule 35(b) motion filed
after December 1, 2002, regardless of when the defendant was originally sentenced,
see United States v. Moreno, 364 F.3d 1232, 1234-35 (11th Cir. 2004), Whitehead
has forfeited any such argument here because his submissions to the district court
do not even hint at the possibility that Rule 35(b)(2) applies. Indeed, his
submissions foreclose Rule 35(b)(2) relief because they refer only to information
that he knew and provided to the government before sentencing. Accordingly, an
argument based on Rule 35(b)(2) (or any other argument that Whitehead raises for
the first time on appeal) has not been adequately preserved and is not a basis for
relief here. See Perruquet v. Briley, 390 F.3d 505, 517 (7th Cir. 2004).


                                                                           AFFIRMED.
