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

                                                                            FILED
                                                                         October 21, 2008
                                     No. 08-10091
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

CEDRIC RAY TATUM, also known as Little Ced, also known as Black, also
known as Cemo

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:00-CR-8-6


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Cedric Ray Tatum, federal prisoner # 33588-077, appeals the district
court’s denial of his motion to compel the Government to file a motion for
reduction of sentence pursuant to FED. R. CRIM. P. 35(b) and 18 U.S.C. §3742(a).
       Neither §3742 nor 35(b) provide a jurisdictional basis upon which to
entertain Tatum’s motion. See United States v. Early, 27 F.3d 140, 141-42 (5th
Cir. 1994). The Government’s refusal to file a Rule 35 motion is reviewable only


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                No. 08-10091

if it is based on an unconstitutional motive, which Tatum does not allege. See
United States v. Sneed, 63 F.3d 381, 389 n. 6 (5th Cir.1995). Tatum’s motion is
thus unauthorized and without jurisdiction.       Accordingly, the appeal is
DISMISSED for lack of jurisdiction.




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