                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________          FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-14592         ELEVENTH CIRCUIT
                                                       MARCH 17, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                          CLERK

                     D. C. Docket No. 04-60039-CR-WPD

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

THEODIS JONES,

                                                           Defendant-Appellant.


                         ________________________

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

                               (March 17, 2010)

Before TJOFLAT, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     In United States v. Jones, 280 Fed.Appx. 899 (11th Cir. 2008), we affirmed
Theodis Jones’s sentence of 188 months’ imprisonment—imposed following a plea

of guilty pursuant to a plea agreement—for conspiracy to possess with intent to

distribute crack cocaine.1 In July 2009, he petitioned the district court for a writ of

mandamus pursuant to 28 U.S.C. § 1361 to compel the Government to move the

court pursuant to Federal Rule of Criminal Procedure 35(b) to reduce his sentence

in accordance with the “substantial assistance” provision of the plea agreement.

The court denied his motion, noting that Jones well understood that, under the plea

agreement, the Government retained the unfettered discretion whether to seek a

sentence reduction or not. Jones now appeals the court’s ruling, arguing that the

plea agreement required the Government to evaluate his conduct, make a good-

faith determination of whether his conduct merited a substantial-assistance motion,

and then inform the court of his assistance. He argues, moreover, that the

Government’s failure to file such motion was in bad faith and not rationally related

to a legitimate government end and therefore denied him due process of law.

      We review the district court’s denial of a petition for writ of mandamus for

abuse of discretion. See Kerr v. U. S. Dist. Ct. for the N. Dist. of Cal., 426 U.S.

394, 403, 96 S.Ct. 2119, 2124, 48 L.Ed.2d 725 (1976) (reviewing denial of writ of

mandamus pursuant to 28 U.S.C. § 1651(a)). A district court has original



      1
          Jones was indicted for this offense in February 2004.

                                                2
jurisdiction to “compel an officer or employee of the United States or any agency

thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. “[T]he remedy

of mandamus is a drastic one, to be invoked only in extraordinary situations.” See

In re BellSouth Corp., 334 F.3d 941, 953 (11th Cir. 2003) (quotation omitted)

(reviewing petition for writ of mandamus to disqualify opposing counsel). “The

party seeking mandamus has the burden of demonstrating that its right to issuance

of the writ is clear and indisputable.” Id. (quotations omitted). A writ of

mandamus “is only appropriate when: (1) the plaintiff has a clear right to the relief

requested; (2) the defendant has a clear duty to act; and (3) no other adequate

remedy is available.” Cash v. Barnhart, 327 F.3d 1252, 1258 (11th Cir. 2003)

(quotations and alteration omitted).

      Rule 35(b)(1) provides that “[u]pon the government’s motion made within

one year of sentencing, the court may reduce a sentence if the defendant, after

sentencing, provided substantial assistance in investigating or prosecuting another

person.” In addition, Rule 35(b)(2) states:

      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;

             (B) information provided by the defendant to the government

                                          3
              within one year of sentencing, but which did not become useful
              to the government until more than one year after sentencing; or

              (C) information the usefulness of which could not reasonably
              have been anticipated by the defendant until more than one year
              after sentencing and which was promptly provided to the
              government after its usefulness was reasonably apparent to the
              defendant.

Finally, Rule 35(b)(3) states that “[i]n evaluating whether the defendant has

provided substantial assistance, the court may consider the defendant’s presentence

assistance.” Finally, in the original sentencing context, U.S.S.G. § 5K1.1 provides

that:

        Upon motion of the government stating that the defendant has
        provided substantial assistance in the investigation or prosecution of
        another person who has committed an offense, the court may depart
        from the guidelines.

        The government has the power, but not the duty, to file a substantial-

assistance motion when the defendant has provided substantial assistance. See

Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 1843, 118 L.Ed.2d 524

(1992) (addressing the government’s failure to file a substantial-assistance motion

in the § 5K1.1 context); see United States v. McNeese, 547 F.3d 1307, 1308-09

(11th Cir. 2008) (applying Wade in the Rule 35(b) context), cert. denied, 129 S.Ct.

2031 (2009). Federal district courts may review the government’s refusal to file a

substantial-assistance motion if the defendant first makes a “substantial threshold



                                           4
showing” that the refusal was based upon an unconstitutional motive, such as race

or religion. Id. at 185-86, 112 S.Ct. at 1843-44 (quotation omitted); see also

United States v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000) (limiting “review of the

government’s refusal to file substantial assistance motions to claims of

unconstitutional motive”).

       In this case, Jones failed to demonstrate that he had a clear right to the relief

requested, or that the Government had a clear duty to file a substantial-assistance

motion. In that he made no claim that the Government’s failure to file the motion

was due to an unconstitutional motive, the district court had no basis for granting

the writ.

       AFFIRMED.




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