                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                             No. 10-10249               AUGUST 20, 2010
                         Non-Argument Calendar             JOHN LEY
                                                             CLERK
                       ________________________

                  D.C. Docket No. 0:08-cr-60165-WPD-1

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,



                                  versus

ANTHONY DEHANEY, a.k.a. Ewart Dehaney,
a.k.a. Ewart Anthony Dehaney,

                                                        Defendant-Appellant.

                      ________________________

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

                            (August 20, 2010)

Before EDMONDSON, BLACK and MARTIN, Circuit Judges.

PER CURIAM:
       Anthony Dehaney, a federal prisoner proceeding pro se, appeals the district

court’s denial of his motion for specific performance of his plea agreement.

Dehaney contends the district court erred by failing to order the government to

move to reduce his sentence based on his assistance in other criminal cases

pursuant to Federal Rule of Criminal Procedure 35. Dehaney claims the

government made a binding promise during plea negotiations to move for a

reduction of his sentence if he provided such assistance.1

       Whether the district court can compel the government to file a substantial-

assistance motion is a question of law this Court reviews de novo. See United

States v. Forney, 9 F.3d 1492, 1498 (11th Cir. 1993). This Court also reviews de

novo whether the government breached a plea agreement. United States v.

Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998).

       Upon a motion from the government pursuant to U.S.S.G. § 5K1.1 or Rule

35, the district court may reduce a defendant’s sentence based on his substantial

assistance in other investigations or prosecutions. “[I]f the defendant has already

received a reduction of sentence under U.S.S.G. § 5K1.1 for substantial


       1
          Dehaney mentions in his initial brief that his total sentence exceeded the statutory
maximum, and that he was coerced into entering the plea agreement. Although he is entitled to a
liberal construction as a pro se litigant, he has abandoned or otherwise failed to preserve these
challenges on appeal by only isolated passing references to them. See Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008).

                                                2
pre-sentencing assistance, he or she may not have that assistance counted again in

a post-sentence Rule 35(b) motion.” Fed. R. Crim. P. 35(b), advisory committee’s

note to the 1998 amendments.

      The government has a “power, not a duty,” to file a Rule 35 motion when

the defendant has provided substantial assistance. Wade v. United States, 504 U.S.

181, 185, 112 S.Ct. 1840, 1843, 118 L.Ed.2d 524 (1992). Ordinarily, “the courts

are precluded from intruding into prosecutorial discretion” regarding whether to

file a Rule 35 motion. United States v. Forney, 9 F.3d 1492, 1501 (11th Cir.

1993). We may review the government’s failure to file a Rule 35 motion,

however, when the defendant makes a substantial threshold showing that the

prosecution refused to move for a reduction because of a constitutionally

impermissible motivation, such as race, religion, or other arbitrary classification.

Id. at 1501–02 & n.4.

      Contrary to Dehaney’s assertion on appeal, the government filed a pre-

sentence § 5K1.1 motion, and the district court granted the motion and reduced his

sentence one month below the guidelines. There is no evidence that Dehaney has

provided any additional substantial assistance since sentencing to warrant a

supplemental Rule 35 motion. Even if he had provided such assistance, Dehaney

asserts no unconstitutional impropriety upon which the district court could have

                                          3
reviewed the government’s exercise of discretion in this matter, and the

government did not breach the plea agreement by failing to file a second motion to

reduce his sentence.2 The district court did not err in denying Dehaney’s motion

for specific performance of the plea agreement. Accordingly, we affirm.

       AFFIRMED.




       2
          The plea agreement merely provides that the government may decide to file a motion to
under Rule 35 or § 5K1.1 in its “sole and un-reviewable judgment.” The plea agreement further
states: “The defendant also understands and acknowledges that the court is under no obligation to
reduce the defendant’s sentence because of the defendant’s cooperation.”

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