   Case: 10-31100       Document: 00511590692         Page: 1     Date Filed: 09/01/2011




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

                                                                            FILED
                                                                        September 1, 2011
                                     No. 10-31100
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

JORGE MARTINEZ,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:02-CR-139-1




Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*


       Jorge Martinez, federal prisoner # 22231-034, appeals the denial of his
motion to compel the government to move to reduce his sentence under Rule 35

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-31100    Document: 00511590692      Page: 2    Date Filed: 09/01/2011

                                  No. 10-31100

of the Federal Rules of Criminal Procedure. He argued that the government
orally agreed to file such a motion for substantial assistance that he had pro-
vided after sentencing and that the government had refused to file the motion.
      Neither party makes a jurisdictional challenge, but we must consider this
court’s and the district court’s jurisdictional basis. See United States v. Key, 205
F.3d 773, 774 (5th Cir. 2000). The district court has jurisdiction to correct or
modify Martinez’s sentence in limited circumstances under 18 U.S.C. § 3582 (b)
and (c). The applicable provision confers jurisdiction if the government moves
to reduce a sentence under Rule 35(b).
      Assuming arguendo that a promise was made, the district court has juris-
diction to review the government’s refusal to file a Rule 35 motion only where
the defendant has made a substantial threshold showing that the government
has refused based on an “unconstitutional motive.” United States v. Sneed, 63
F.3d 381, 388 n.6 (5th Cir. 1995). Martinez did not allege or demonstrate any
unconstitutional motive that might have permitted the court to review the
refusal to file a Rule 35(b) motion. The motion to compel was thus “an unauthor-
ized motion which the district court was without jurisdiction to entertain,”
because the “motion and situation do not fit any provision” of the Rule. United
States v. Early, 27 F.3d 140, 142 (5th Cir. 1994). Accordingly, we AFFIRM on
the alternative grounds that the district court lacked jurisdiction to grant the
motion. See id.




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