   Case: 11-30565       Document: 00511797324         Page: 1     Date Filed: 03/22/2012




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

                                                                            FILED
                                                                          March 22, 2012
                                     No. 11-30565
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

DAMIEN WOODS, Also Known as Pimp,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                                No. 2:05-CR-243-6




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


       Damien Woods, federal prisoner # 25924-034, appeals the denial of his
motion to compel the government to file a motion to reduce his sentence pur-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30565    Document: 00511797324      Page: 2    Date Filed: 03/22/2012

                                  No. 11-30565

suant to Federal Rule of Criminal Procedure 35(b). On motion of the govern-
ment, a court may reduce a sentence to reflect substantial assistance in the
investigation or prosecution of another offender. FED. R. CRIM. P. 35(b).
      Where the government has agreed to file a Rule 35(b) motion and then
refuses to do so, such refusal is not reviewable unless it is based on an “unconsti-
tutional motive,” Wade v. United States, 504 U.S. 181, 185-86 (1992); United
States v. Sneed, 63 F.3d 381, 389 n.6 (5th Cir. 1995), which means a motive
based on “race, religion, or other arbitrary classification, including the exercise
of protected statutory and constitutional rights,” Wayte v. United States, 470
U.S. 598, 608 (1985) (internal quotation marks and citations omitted); Wade,
504 U.S. at 185 (citing Wayte, 470 U.S. at 608-09). The defendant must make “a
substantial threshold showing that the government’s refusal is based upon
unconstitutional motives.” Sneed, 63 F.3d at 389 n.6 (internal quotation marks
and citations omitted).
      Woods has failed to make that showing. See id. He has not asserted that
the government was motivated by a discriminatory reason. See United States
v. Urbani, 967 F.2d 106, 109 (5th Cir. 1992). He has also not claimed that the
government sought to deprive him of due process by refusing to file a Rule 35(b)
motion, to the extent that depriving a defendant of due process could be a consti-
tutionally suspect reason.
      The judgment is AFFIRMED.




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