                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________           FILED
                                               U.S. COURT OF APPEALS
                            No. 09-11371         ELEVENTH CIRCUIT
                                                  JANUARY 13, 2010
                        Non-Argument Calendar
                                                      JOHN LEY
                      ________________________
                                                    ACTING CLERK

                D. C. Docket No. 00-00432-CR-T-30-TBM


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus


CESAR AUGUSTO MARIN-MARTINEZ,

                                                        Defendant-Appellant.

                      ________________________

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

                           (January 13, 2010)

Before TJOFLAT, EDMONDSON and PRYOR, Circuit Judges.


PER CURIAM:
      The United States arrested Petitioner for possession and conspiracy to

distribute five or more kilograms of cocaine. In exchange for a reduced sentence,

Petitioner says he provided the government with information for use in related

investigations. Petitioner filed a motion asking the District Court to compel the

government to file a motion to reduce Petitioner's sentence under Federal Rule of

Criminal Procedure 35(b). The District Court denied Petitioner's motion without

an evidentiary hearing. We see no reversible error; we affirm.

      In 2001, Petitioner was convicted, and the District Court sentenced

Petitioner to 360 months imprisonment. In 2009, Petitioner filed a motion with the

District Court to compel the government to file a motion to reduce his sentence

under Rule 35(b). Although a Rule 35(b) motion is discretionary, Petitioner asked

the District Court to review why the government had not lived up to an alleged

deal to file the motion. Petitioner suggested that the reason was to punish

Petitioner for demanding a jury trial: an unconstitutional motive. The District

Court denied Petitioner's motion.

      We review a district court's denial of a motion to compel the government to

file a Rule 35(b) motion (as well as its decision not to hold an evidentiary hearing

on the motion) for an abuse of discretion. United States v. Winfield, 960 F.2d 970,

972 (11th Cir. 1992).



                                          2
       District courts have authority to review the government's refusal to file a

Rule 35(b) motion and to grant a remedy if the refusal was based on an

unconstitutional motive. Wade v. United States, 112 S. Ct. 1840, 1843-44 (1992).

Just because a defendant provides substantial assistance, the defendant is not

entitled to a remedy, discovery, or even an evidentiary hearing. Id. at 1844.

Generalized allegations of improper governmental motive are insufficient;

Defendant must make a "substantial threshold showing" before a district court

must grant an evidentiary hearing. Id.

       Petitioner presented evidence directed towards the existence of an agreement

with the government.1 Petitioner did not present evidence directed towards the

reason the government violated the agreement, if the agreement ever existed.

Because Petitioner failed to make a substantial threshold showing that the

government had an unconstitutional motive for not filing a Rule 35(b) motion,

Petitioner is unentitled to an evidentiary hearing, discovery, or remedy. The

District Court did not abuse its discretion in denying Petitioner's motion without an

evidentiary hearing.

       AFFIRMED.


       1
         The government says that the evidence that Petitioner attached as appendices to his brief
were not part of the district court record, and it is therefore improper for this court to consider
them. Given that the appendices do not go to Petitioner's required showing, we need not reach
their legitimacy.

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