     Case: 10-10608 Document: 00511333081 Page: 1 Date Filed: 12/27/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 27, 2010
                                     No. 10-10608
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

OLGA BENITEZ, Also Known as Olga Osorio,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:97-CR-408-4




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*


       Olga Benitez, federal prisoner # 31283-077, asks to proceed in forma pau-
peris (“IFP”) in this appeal from the denial of her “motion to compel specific per-

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-10608 Document: 00511333081 Page: 2 Date Filed: 12/27/2010

                                      No. 10-10608

formance of substantial assistance under Rule 35(b),” Federal Rules of Criminal
Procedure. “An appeal may not be taken in forma pauperis if the trial court cer-
tifies in writing that it is not taken in good faith.” 28 U.S.C. § 1915(a)(3). This
court’s inquiry into good faith “is limited to whether the appeal involves ‘legal
points arguable on their merits (and therefore not frivolous).’” Howard v. King,
707 F.2d 215, 220 (5th Cir. 1983).
      We may not review the government’s refusal to file a rule 35(b) motion un-
less its refusal is premised on an unconstitutional motive, such as race or reli-
gion, or the government has bargained away its discretion. United States v.
Grant, 493 F.3d 464, 467-68 (5th Cir. 2007). Benitez has not contended in the
district court or on appeal that the government’s failure to file was based on an
unconstitutional motive. See id. at 467. She contends instead that the failure
was arbitrary and without a rational basis. That contention is without merit.
An “unadorned allegation of general arbitrariness” does not demonstrate that
the government had an unconstitutional motive. United States v. Urbini, 967
F.2d 106, 110 (5th Cir. 1992).
      Benitez asserts that she would not have agreed to cooperate without the
government’s agreement to file a rule 35(b) motion. She contends that during
post-conviction meetings among her attorney, an Assistant U.S. Attorney, and
case agents, the government promised to file the motion and that an evidentiary
hearing is necessary to develop those facts. Benitez’s contentions are not sup-
ported by the documents she filed in support of her motion. See Grant, 493 F.3d
at 467-68; United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (stating
that a movant seeking an evidentiary hearing must present independent indicia
of the likely merit of his claims).
      For the first time on appeal, Benitez contends that her attorney rendered
ineffective assistance in failing to reduce the cooperation agreement to writing
and in advising her improperly about rule 35 practice. There is no Sixth Amend-
ment right to counsel during rule 35(b) proceedings. United States v. Palomo,

                                           2
    Case: 10-10608 Document: 00511333081 Page: 3 Date Filed: 12/27/2010

                                 No. 10-10608

80 F.3d 138, 140-42 (5th Cir. 1996).
      Because Benitez has not shown that her appeal will present a nonfrivolous
issue, leave to proceed IFP is DENIED, and the appeal is DISMISSED as frivo-
lous. See Howard, 707 F.2d at 220; 5 TH C IR. R. 42.2.




                                       3
