                                                       [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                             July 27, 2005
                               No. 05-10165
                                                           THOMAS K. KAHN
                           Non-Argument Calendar               CLERK
                         ________________________

                D. C. Docket No. 00-00197-CR-ORL-22-KRS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

JOHN DOMINICK CAPPS,

                                                           Defendant-Appellant.


                         ________________________

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

                                (July 27, 2005)

Before TJOFLAT, DUBINA and KRAVITCH, Circuit Judges.

PER CURIAM:

     John Dominick Capps, a federal prisoner proceeding pro se, appeals the
district court’s denial of his motion to compel the government to file a Rule 35(b)

motion for reduction of sentence based on substantial assistance.

       Capps pleaded guilty to six counts of an indictment for drug offenses. In the

plea agreement, Capps waived his right to appeal his sentence either directly or

collaterally.1 The agreement also contained a provision under which the

government, in its discretion, agreed to consider making a motion for a reduction

of sentence based on substantial assistance.

       After several years in prison, Capps filed the instant motion to compel the

government to file a Rule 35(b) motion.2 According to Capps, he and one of his

codefendants assisted authorities in uncovering a drug-smuggling operation at the

federal prison. Capps noted that his codefendant had received a Rule 35(b)

reduction in his sentence as a result of the cooperation, but that government had

refused to file a motion in Capps’s case because he had filed a grievance against a

prison guard. Capps asserted that this refusal unconstitutionally violated his First

Amendment rights and that the government’s failure to file a motion was a breach


       1
        Capps did not file a direct appeal, but filed a collateral attack pursuant to 28 U.S.C. § 2255,
which the district court denied, concluding that Capps had waived his right to bring a collateral
attack.
       2
           Attached to the motion were several exhibits, including the transcript from his
codefendants’s Rule 35 hearing. At that hearing, the assistant United States attorney indicated that
she might file a Rule 35 motion on Capps’s behalf, and a witness testified to Capps’s cooperation.
Also attached were copies of Capps’s grievance and letters to the assistant United States attorney
regarding Capps’s assistance.

                                                  2
of the plea agreement. Capps also requested an evidentiary hearing.

      The government responded that the court lacked jurisdiction to compel the

government to file a Rule 35(b) motion. The government further denied any

unconstitutional motive, explaining that Capps was not entitled to a reduction

because he had been involved with drug activity while in prison and he filed a false

statement of abuse, which he later recanted. The court denied the motion to

compel without an evidentiary hearing.

      On appeal, Capps argues that the court erred in denying his motion to

compel because (1) the government acted with bad faith and an unconstitutional

motive; (2) the government breached the plea agreement; and (3) he was entitled to

an evidentiary hearing.

      Our review of the government’s refusal to file a Rule 35(b) motion for

reduction of sentence based on substantial assistance is limited to whether the

government acted with an unconstitutional motive. 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, 1843, 118 L.Ed.2d 524 (1992)); see also United States v. Daniel, No.

04-13493, manuscript op. at 6 (11th Cir. May 24, 2005) (unpublished) (citing

Nealy 232 F.3d at 831 and United States v. Forney, 9 F.3d 1492, 1500-02 (11th

Cir. 1993)). Generally, courts will not invade a prosecutor’s discretion regarding



                                          3
substantial assistance motions. See United States v. Orozco, 160 F.3d 1309, 1316

(11th Cir. 1998). A district court’s denial of an evidentiary hearing is reviewed for

abuse of discretion. Aron v. United States, 291 F.3d 708, 714 n.5 (11th Cir. 2002).

       Here, Capps provided information on a prison drug smuggling ring more

than one year after sentencing.3 The government admitted that the information

assisted authorities in their investigations, and it filed a motion for a reduction of

sentence for one of Capps’s codefendants who also provided assistance. The

government, however, declined to file any motion with regard to Capps based on

Capps’s false statement and his alleged drug activity while incarcerated.

       To the extent that Capps argues that the government breached the plea

agreement by refusing to file a motion for a reduction, that argument is without

merit, and the court lacked jurisdiction to review that claim. Where plea agreement

requires government to “consider” filing a Rule 35 motion, the government does

not breach the agreement by failing to file such a motion. United States v. Forney,

9 F.3d 1492, 1500-02 (11th Cir. 1993). Additionally, the plea agreement contained

a waiver provision under which Capps agreed that he would not challenge the




       3
          Under Rule 35(b), “upon the government’s motion made more than one year after
sentencing, the court may reduce a sentence if the defendant’s substantial assistance involved: (A)
information not known to the defendant until one year or more after sentencing; . . . “ Fed.R.Crim.P.
35(b)(2)(A).

                                                 4
government’s refusal to file a Rule 35 motion.4 Accordingly, the district court

properly denied the motion to compel on these grounds.

       Capps cannot show that the government acted with an unconstitutional

motive, as Capps had no First Amendment right to make a false statement. See

Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007 (1974).

Moreover, the government explained that a motion was not appropriate given

Capps’s continued drug activity while in prison. Because the government could

rely on this independent ground to exercise its discretion, Capps cannot make a

showing of unconstitutional motive.

       Finally, the district court did not abuse its discretion by refusing to hold an

evidentiary hearing. In the absence of any showing of an unconstitutional motive,

the court need not hold an evidentiary hearing. See United States v. Holston, 2005

WL 956975 at *2 (11th Cir. 2005) (unpublished) (citing United States v.

Gonsalves, 121 F.3d 1416, 1420 (11th Cir. 1997) (considering evidentiary hearings

in the context of U.S.S.G. § 5K1.1 motions). Accordingly, we AFFIRM the

district court.



       4
          To the extent that Capps argues there was a subsequent oral agreement based on substantial
assistance, any oral agreement is still subject to the government’s discretion to file a motion. See
Daniel, manuscript op. at 5 n.2. Accordingly, absent any showing of unconstitutional motive, the
district court properly denied the motion.


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