                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                               January 25, 2006
                               No. 04-15680                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D. C. Docket No. 96-00392-CR-9-1

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

CEDRIC HOLLAND,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                              (January 25, 2006)

Before TJOFLAT, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

     Cedric Holland, a federal prisoner serving a 151-month sentence for
possession with intent to distribute cocaine base, in violation of 21 U.S.C.

§ 841(a)(1), appeals from the district court’s denial of his motion to compel the

government to file a Fed.R.Crim.P. 35(b) motion to reduce his sentence for

substantial assistance. On appeal, Holland argues (1) that the instant appeal is not

barred by the sentence-appeal waiver in his plea agreement; (2) the government’s

refusal to file a Rule 35(b) motion on his behalf constituted a breach of the plea

agreement and a subsequent oral promise to file such a motion; and (3) the district

court erred by denying his motion for an evidentiary hearing.

      Upon a thorough review of the record on appeal, including Holland’s written

plea agreement, the transcripts of the change-of-plea and sentencing hearings, and

Holland’s “Motion to Compel Specific Performance of Plea Agreement and Filing

of Rule 35(b) Motion” and related pleadings, and after consideration of the briefs

of the parties to this Court, we find no reversible error.

        The Supreme Court has held that federal district courts may review the

government’s refusal to file a substantial-assistance motion if the defendant first

makes a “substantial threshold showing” that the refusal was based upon an

unconstitutional motive, such as race or religion. Wade v. United States, 504 U.S.

181 (1992). In the absence of this showing, the defendant has no right to discovery

or an evidentiary hearing on this issue. Id. at 186. In Wade, the Court noted that a



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defendant would be entitled to relief if the prosecutor’s refusal to move was not

rationally related to any legitimate government interest. Id. Applying the Supreme

Court’s holding in Wade, this Court has concluded that “courts are precluded from

intruding into prosecutorial discretion,” except where there is “an allegation and a

substantial showing that the prosecution refused to file a substantial assistance

motion because of a constitutionally impermissible motivation, such as race or

religion.” United States v. Forney, 9 F.3d 1492, (emphasis in original).

      Holland’s allegations that the government’s refusal to file a Rule 35(b)

motion was “arbitrary” and made in “bad faith” are insufficient to justify judicial

review, and because the government did not breach the plea agreement by refusing

to file a Rule 35(b) motion when they retained discretion in the matter, the district

court did not err in denying Holland’s “Motion to Compel” or his motion for an

evidentiary hearing on this issue.

      AFFIRMED.




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