                                                               [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                       FILED
                          ________________________           U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                  December 22, 2006
                                 No. 06-13295                   THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                       D. C. Docket No. 99-00714-CR-FAM

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                       versus

PEDRO CASTILLO,

                                                               Defendant-Appellant.
                           ________________________

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

                               (December 22, 2006)

Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

      Pedro Castillo, a federal prisoner proceeding pro se, appeals the denial of his

post-judgment motions to compel the government to file a motion under
Fed.R.Crim.P. 35(b), pursuant to 28 U.S.C. § 1361, and to alter or amend judgment

for reconsideration of the district court’s denial of his motion to compel, which he

styled as a Fed.R.Civ.P. 59(e) motion to alter or amend judgment. On appeal, he

argues that the district court erred in denying his motions because the

government’s refusal to file an additional motion for a sentence reduction was

based on unconstitutional motives.

      We must first resolve jurisdictional issues before we address the merits of

underlying claims. See United States v. Kapelushnik, 306 F.3d 1090, 1093 (11th

Cir. 2002). We review questions of subject matter jurisdiction de novo. United

States v. Winingear, 422 F.3d 1241, 1245 (11th Cir. 2005).

      Rule 35(b)(2) provides that, after a sentence has been imposed, upon motion

of the government made more than one year after sentencing, a district court may

reduce a defendant’s sentence based on substantial assistance if the defendant’s

substantial assistance involved information (1) not known to the defendant; (2) not

useful to the government; or (3) the usefulness of which was not reasonably

anticipated by the defendant, until more than one year after sentencing.

Fed. R. Crim. P. 35(b)(2). We have held that this time period for filing a Rule

35(b) motion is jurisdictional. See United States v. Orozco, 160 F.3d 1309, 1313

(11th Cir. 1998).



                                          2
      We have held that the government has “‘a power, not a duty, to file a motion

when a defendant has substantially assisted.’” United States v. Forney, 9 F.3d

1492, 1500 (11th Cir. 1998) (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). If the defendant alleges and makes a threshold showing that

the government’s refusal to file a substantial assistance motion was a breach of a

plea agreement, an evidentiary hearing and relief may be appropriate. United

States v. Gonsalves, 121 F.3d 1416, 1419-20 (11th Cir. 1997). However, where a

plea agreement requires the government to “consider” filing a Rule 35 motion, the

government does not breach the agreement by failing to file such a motion, and the

district court has no jurisdiction to review the claim of breach. See Forney, 9 F.3d

at 1499-1502.

      The Supreme Court has held that “federal district courts [also] 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. A defendant

who merely claims to have provided substantial assistance or who makes only

generalized allegations of improper motive is not entitled to a remedy or even to



                                           3
discovery or an evidentiary hearing. Id. at 186, 112 S.Ct. at 1844. Thus, judicial

review is generally appropriate only when “there is an allegation and a substantial

showing that the prosecution refused to file a substantial assistance motion because

of a constitutionally impermissible motivation.” Forney, 9 F.3d at 1502 (emphasis

in original).

       Upon review of the record and consideration of the briefs of the parties, we

find no reversible error.

       The record clearly reflects that the district court did not have jurisdiction to

entertain Castillo’s motion. He alleged a plea breach and asked the district court to

conduct an evidentiary hearing, and if necessary, compel the government to file a

Rule 35(b) substantial assistance motion on his behalf, which he claimed was

promised to him in his plea agreement. However, the plea agreement clearly stated

that the government was not required to make a substantial assistance motion

regarding future cooperation, and Castillo acknowledged this. Since the

government only had to consider filing such a substantial assistance motion, it did

not breach the agreement by only filing a motion under § 5K1.1, and the district

court had no jurisdiction to review the claim of breach. Further, absent a threshold

showing of plea breach, the only way the district court would have had any power

to act on Castillo’s claim under Rule 35 was if he alleged and made a substantial



                                            4
showing of an unconstitutional motive. Though Castillo alleged an

unconstitutional motive, he did not make a substantial showing that the

government’s refusal to file a substantial assistance motion, either before or after

sentencing, was based on suspect reasons, such as his race or religion, or that its

refusal was not related to a legitimate government end. Furthermore, even

assuming that the district court was authorized to compel the government to file a

Rule 35(b) motion, it appears that such a motion would be untimely, and therefore,

that the district court would be without jurisdiction to consider it. Thus, Castillo

cannot show that he was entitled to judicial review of the government’s refusal to

file a substantial assistance motion. Accordingly, we affirm.

      AFFIRMED.




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