                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                    FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                August 22, 2005
                               No. 05-10491                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                     D. C. Docket No. 89-06146-CR-FAM

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

WILLIAM FRANCIS STAMBOULIDES,
a.k.a. Billy Stamboulides,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________
                               (August 22, 2005)


Before TJOFLAT, HULL and WILSON, Circuit Judges.

PER CURIAM:

     On June 25, 1991, a Southern District of Florida jury having found appellant
guilty of twenty-three counts of wire fraud, one count of conspiracy to commit

wire fraud, and six counts of extortion, the district court sentenced him to prison

terms totaling 135 months.1 He appealed his convictions; we affirmed. United

States v. Wolfe, 16 F. 3d 1231 (11th Cir. 1994) (Table). After appellant

unsuccessfully challenged his convictions under 28 U.S.C. § 2255, he moved the

district court on November 24, 2004, to compel the Government to file a Fed. R.

Crim. P. 35(b)(2) motion for the reduction of sentence.

       In his motion to compel, appellant contended that (1) he had provided the

Government with substantial assistance in connection with a number of cases,

based on knowledge that he obtained while incarcerated; (2) in January 2001, the

Government entered into a formal oral “cooperation agreement” with him,

agreeing to file a motion to reduce his sentence based on that substantial

assistance; and (3) the Government had reneged on its promise to file a Rule 35(b)

motion for that substantial assistance. In his memorandum in support of his

motion, appellant argued that (1) the Government acted in bad faith and otherwise

breached the oral agreement by not filing a Rule 35(b) motion, and (2), under


       1
          The court acquitted appellant of one count of wire fraud following the return of the
jury’s verdict. Since all of the offenses were committed after November 1, 1987, the court
sentenced appellant under the guidelines system created by the Sentencing Reform Act of 1984.
The court provided that appellant’s sentences would run consecutively to the sentences appellant
received in a Northern District of Georgia case, United States v. Grab, 990 F.2d 1267 (11th Cir.
1993 (Table).

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Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1972), the

district court had authority, irrespective of an agreement, to grant him relief if the

Government’s decision not to file a Rule 35(b) motion was arbitrary, i.e., not

rationally related to any legitimate government end.

          Before the Government could respond, the court sua sponte disposed of the

motion. On December 21, 2004, it entered an order denying the motion “for lack

of jurisdiction.” Record, Vol 1 at 480. Appellant now appeals.

          Before we can address the legal sufficiency of appellant’s motion, we must

determine whether the district court had subject matter jurisdiction to entertain the

motion. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-102, 118 S.Ct.

1003, 1012-16, 140 L.Ed.2d 210 (1998). Assuming for sake of argument that

appellant’s motion is facially sufficient—an issue we address below—the question

is whether, at the time appellant filed his motion, the Government could have

moved the district court to reduce his sentence. The answer is yes, if the

Government could satisfy one or more of Rule 35(b)(2)’s requirements. That Rule

states:

          (2) Later Motion. 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

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             government 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.

      It appears from appellant’s submissions in support of his motion to compel

that the Government could have invoked the district court’s jurisdiction under one

or more of these subsections, A, B, or C. The court therefore had jurisdiction to

entertain appellant’s motion provided that it is facially sufficient, a matter we turn

to now.

      The government has "‘a power, not a duty, to file a motion [for sentence

reduction] when a defendant has substantially assisted.'" United States v. Forney, 9

F.3d 1492, 1500 (11th Cir. 1993) (quoting Wade v. United States, 504 U.S. 181,

185, 112 S.Ct. 1840, 1843, 118 L.Ed.2d 524 (1992)) (holding such in the context

of U.S.S.G. § 5K1.1). The Supreme Court has expressed it this way: "federal

courts have authority to review a prosecutor's refusal to file a substantial-assistance

motion and to grant a remedy if they find that the refusal was based on an

unconstitutional motive," like "race or religion," or was not "rationally related to

any legitimate [g]overnment end." Wade, 504 U.S. at 185-86, 112 S.Ct. at

1843-44 (holding such in the context of U.S.S.G. § 5K1.1). A defendant who

                                           4
merely claims to have provided substantial assistance or only alleges in a

conclusory way that the government acted with an improper motive, however, is

not entitled to a remedy or even to discovery or an evidentiary hearing. Id. at 186,

112 S.Ct. at 1844. In sum, a district court has jurisdiction to consider a motion to

compel, such as appellant’s, where there is an allegation and substantial showing

that the government’s refusal to file a “substantial assistance” motion is not

“rationally related to any legitimate [g]overnment end.”

      In that the district court denied appellant’s motion without the benefit of the

Government’s response, we cannot tell whether the Government refused to file a

Rule 35(b)(2) motion because none of the requirements of Rule 35(b)(2)(A),(B), or

(C) were satisfied or, if they were satisfied, whether the Government’s refusal to

file such motion was not rationally related to a legitimate government end. These

are issues the district court should address in the first instance.

      We therefore vacate the district court’s judgment and remand the case for

further proceedings not inconsistent herewith. In doing so, we intimate no view on

the merits of appellant’s position.

      VACATED and REMANDED.




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