            Case: 13-11675   Date Filed: 02/07/2014   Page: 1 of 7


                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-11675
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:93-cr-00571-UU-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

WAYNE ANDERSON,
a.k.a. Goldie,
a.k.a. G Man,
a.k.a. G,

                                                          Defendant-Appellant.

                       ________________________

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

                             (February 7, 2014)

Before TJOFLAT, JORDAN, and FAY, Circuit Judges.

PER CURIAM:
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      Wayne Anderson appeals the district judge’s order denying his motion to

compel the government to file a motion for reduction of sentence, without an

evidentiary hearing, pursuant to Federal Rule of Criminal Procedure 35(b). We

affirm.

                               I. BACKGROUND

      In 1994, Anderson was convicted of robbery and the use of a firearm during

a crime of violence in the Eastern District of North Carolina. He received a 300-

month imprisonment sentence; in 1997, his sentence was reduced to 270 months,

based on a substantial-assistance motion filed by the government. That same year,

Anderson and eight co-defendants were indicted in the Southern District of Florida

for drug crimes, including unlawful use of a facility in interstate commerce, and

maintaining a continuing criminal enterprise. Anderson pled guilty to: (1) one

count of conspiracy to manufacture and distribute cocaine, in violation of 21

U.S.C. § 846 (Count 1); (2) two counts of using an interstate-commerce facility to

promote and facilitate cocaine distribution, in violation of 18 U.S.C. §§ 1952 and 2

(Counts 5 and 6); (3) four counts of possession with intent to distribute cocaine, in

violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts 11-14); and (4) one

count of engaging in a continuing criminal enterprise, in violation of 21 U.S.C. §

848 (Count 17). The government dismissed all remaining counts against Anderson

after sentencing in accordance with the plea agreement.


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      As part of his plea agreement, Anderson agreed to provide truthful

information and testimony about his and his co-defendants’ involvement in the

drug-trafficking conspiracy underlying his prosecution. In return, the government

agreed it then would move under U.S.S.G. § 5K1.1 to reduce Anderson’s sentence,

if it determined Anderson’s cooperation warranted such a motion. During

Anderson’s sentencing hearing, the government declined to file a § 5K1.1 motion,

because of Anderson’s lack of candor and incomplete cooperation. After awarding

Anderson a 3-level reduction for acceptance of responsibility, the district judge

sentenced Anderson to concurrent terms of life imprisonment for Counts 1, 11-14,

and 17, and 60-month concurrent imprisonment terms for Counts 5 and 6.

      This court affirmed on direct appeal, United States v. Anderson, 132 F.3d 45

(11th Cir. Nov. 25, 1997) (per curiam) (unpublished), and the Supreme Court

denied certiorari, Anderson v. United States, 523 U.S. 1036 (1998). In 1999,

Anderson filed a 28 U.S.C. § 2255 motion to vacate, which the district judge

denied in 2000. A certificate of appealability also was denied.

      In 1998, Anderson filed a habeas petition under 28 U.S.C. § 2255 in the

Eastern District of North Carolina and alleged governmental misconduct claims

pursuant to Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States,

405 U.S. 150 (1972). Anderson’s § 2255 petition voluntarily was withdrawn. In

2011, Anderson filed a pro se petition for writ of mandamus in the Southern


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District of Florida and sought an order compelling the government to file a motion

to reduce his sentence. He argued the government had refused to file a motion

based on an unconstitutional motive. He further contended the government was

retaliating for his allegations that the government had perjured testimony and

withheld evidence that was favorable to him in his 1994 North Carolina

prosecution. The district judge dismissed Anderson’s petition. We dismissed

Anderson’s appeal from the district judge’s order for failure to prosecute.

      In March 2013, Anderson filed this pro se motion seeking to compel the

government to file a Federal Rule of Criminal Procedure 35 motion to reduce his

sentence or to allow him to withdraw his guilty plea. After he had filed claims

against two government agents alleging Brady and Giglio violations, Anderson

contended the government had retaliated by refusing to file a motion to reduce his

sentence. Anderson asserted he voluntarily dismissed his claims against the

agents, because the agents had agreed they then would help him obtain a sentence

reduction. When Anderson asked the government to move to reduce his sentence,

the government denied his request on the ground he falsely had accused two agents

of misconduct. Anderson contends the government’s refusal to move for a

sentence reduction was based on an unconstitutional motive.

      Without an evidentiary hearing, the district judge denied Anderson’s motion

to compel, found Anderson had no right to a substantial-assistance motion, and the


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government had no clear duty to file the motion on his behalf. The judge further

concluded Anderson had alleged no facts suggesting the government had acted

with an unconstitutional motive. On appeal, Anderson argues the district judge

abused her discretion, when she denied an evidentiary hearing on his motion to

compel; he continues to assert the government’s refusal to file a substantial-

assistance motion was based on an unconstitutional motive. 1

                                     II. DISCUSSION

       We review de novo whether a district judge can compel the government to

file a substantial-assistance motion. See United States v. Forney, 9 F.3d 1492,

1498 (11th Cir. 1993). A district judge’s denial of an evidentiary hearing upon a

defendant’s Federal Rule of Criminal Procedure 35 motion is reviewed for abuse

of discretion. See United States v. Winfield, 960 F.2d 970, 972 (11th Cir. 1992)

(per curiam).

       Upon a motion by the government stating the defendant has provided

substantial assistance in the investigation or prosecution of another person who has

committed a crime, a sentencing judge may depart from the Sentencing Guidelines

under U.S.S.G. § 5K1.1. The judge also may consider a government motion to

       1
           Anderson has failed to brief the argument regarding the district judge’s implicit denial
of his alternative request to withdraw his guilty plea; thus, he has abandoned this argument.
United States v. Gupta, 463 F.3d 1182, 1195 (11th Cir. 2006). Additionally, Anderson’s claim
the government modified his plea agreement during his sentencing hearing to require it to file a
future Rule 35 motion is not properly before this court, because he did not raise it before the
district judge and asserted it for the first time in his reply brief on appeal. United States v.
Whitesell, 314 F.3d 1251, 1256 (11th Cir. 2002) (per curiam).
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reduce a sentence made more than one year after the sentence was imposed, if the

defendant’s substantial assistance involved information (1) not previously known

to the defendant, (2) not useful to the government until more than a year after the

defendant’s sentencing, or (3) the usefulness of which could not have been

anticipated until more than one year after sentencing. Fed. R. Crim. P. 35(b)(2).

Both Rule 35 and § 5K1.1 grant the government the power, but not a duty, to file a

substantial-assistance motion. See United States v. McNeese, 547 F.3d 1307, 1308

(11th Cir. 2008) (per curiam) (addressing Rule 35); Forney, 9 F.3d at 1500

(addressing § 5K1.1). Ordinarily, “courts are precluded from intruding into

prosecutorial discretion.” Forney, 9 F.3d at 1501. A district judge may review the

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

first makes a substantial threshold showing that the refusal was based on an

unconstitutional motive, such as the defendant’s race or religion, or that the refusal

was not rationally related to any legitimate government end. Wade v. United

States, 504 U.S. 181, 186 (1992); United States v. Dorsey, 554 F.3d 958, 961 (11th

Cir. 2009).

      Anderson has not made a substantial showing the government refused to file

a substantial-assistance motion for a constitutionally impermissible reason. See

Dorsey, 554 F.3d at 961. At Anderson’s sentencing hearing, the government

explained it did not file a motion, because it had determined Anderson had not


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been completely candid and had provided incomplete cooperation. Anderson has

alleged no facts suggesting the government harbored an unconstitutional motive at

that time. He has submitted no authority for the proposition that, based on any

later additional substantial assistance he provided, the government was required to

reevaluate its prior decision. Cf. United States v. Hernandez, 34 F.3d 998, 999-

1001 (11th Cir. 1994) (vacating and remanding the district judge’s denial of an

evidentiary hearing on the government’s Rule 35 motion, because the denial forced

a breach of the plea agreement, in which the government had promised to advise

the judge of the defendant’s post-sentence cooperation).

      Anderson’s claim on appeal, that he withdrew his North Carolina

misconduct claims in exchange for the government’s agreement to file a Rule 35

motion, mischaracterizes Anderson’s motion to compel. In his motion, he asserted

he voluntarily dismissed his claims against government agents, after which the

agents agreed they would help him obtain a sentence reduction. Because Anderson

did not make a substantial showing of an unconstitutional motive, the district judge

did not abuse her discretion by failing to hold an evidentiary hearing on

Anderson’s motion to compel. See Winfield, 960 F.2d at 972.

      AFFIRMED.




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