              Case: 11-14881    Date Filed: 07/16/2012    Page: 1 of 6



                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 11-14881
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 6:08-cr-00256-GKS-GJK-1


UNITED STATES OF AMERICA,
                                                                 Plaintiff-Appellee,

                                       versus

DARRELL MELLS,
a.k.a. Darrell Burley,

                                                              Defendant-Appellant.
                          ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                  (July 16, 2012)

Before HULL, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:

      Federal prisoner Darrell Mells appeals the district court’s denial of his pro

se petition under 28 U.S.C. § 1361 for a writ of mandamus compelling the
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government to file a substantial-assistance motion under Rule 35(b) of the Federal

Rules of Criminal Procedure. After review, we affirm.

                                I. BACKGROUND

A. Mells’s Guilty Plea

      In February 2009, Mells pled guilty to conspiracy to possess with intent to

distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841 and 846.

In his plea agreement, Mells agreed to cooperate with the government in the

investigation and prosecution of other persons. If Mells cooperated, the

government agreed “to consider whether such cooperation qualifies as ‘substantial

assistance’ . . . warranting the filing of a motion for a reduction of sentence within

one year of the imposition of sentence pursuant to Fed.R.Crim.P. 35(b).” Mells

agreed that he understood that (1) “the determination as to whether ‘substantial

assistance’ has been provided or what type of motion related thereto will be filed,

if any, rests solely with the United States Attorney for the Middle District of

Florida” and (2) he could not and would not “challenge that determination,

whether by appeal, collateral attack, or otherwise.”

      In July 2009, the district court sentenced Mells to 60 months’ imprisonment.

The government appealed the sentence, and this Court vacated the sentence and

remanded with instructions to re-sentence Mells “in accordance with the

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mandatory ten-year minimum sentence.” See United States v. Mells, 383 F. App’x

832, 835 (11th Cir. 2010). On December 21, 2010, the district court entered

judgment sentencing Mells to 120 months’ imprisonment. Mells did not appeal.

B. Petition for Writ of Mandamus

      Instead, in August 2011, Mells filed the present pro se petition for a writ of

mandamus to compel the government to file a Rule 35(b) motion for reduction of

sentence. Mells claimed that he qualified for a sentence reduction under Rule

35(b) because he provided substantial information that led to the arrest and

conviction of his brother, Elliot Mack, for the shooting death of William Sancho,

III. Mells claimed that, after finding out that Mack committed the crime, he

convinced Mack to plead guilty. Mells attached to his petition correspondence

between his attorney, Ronald Fox, and the assistant state attorney who prosecuted

Mack. The assistant state attorney stated his opinion that the Sancho murder

would not have been solved without Mells’s convincing Mack to confess.

      The government responded to the petition and asserted that a Rule 35(b)

motion was unwarranted because Mells never actually talked to federal or state

authorities; Mells’s attorney told the assistant state attorney that Mells was

responsible for convincing his brother to confess to the murder, but Mells himself

never actually talked to any state official.

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       On October 7, 2011, the district court denied Mells’s petition for mandamus

relief. The district court noted that, although the government may file a Rule

35(b) motion to reward substantial assistance, it may also refuse to exercise this

power for any reason except for a constitutionally impermissible reason. The

district court found that Mells failed to allege, much less make a substantial

showing, that the government declined to file a Rule 35(b) motion for an

unconstitutional motive. Mells timely appealed.

                                       II. DISCUSSION

       On appeal, Mells argues that the district court abused its discretion because

the government was required, under the terms of his plea agreement, to file a Rule

35(b) motion based on his cooperation in the Sancho murder investigation.1

       Under Federal Rule of Criminal Procedure 35(b), the district court may

reduce a defendant’s sentence if “the defendant, after sentencing, provided

substantial assistance in investigating or prosecuting another person” and the

government files a motion requesting such relief. Fed.R.Crim.P. 35(b). The

government has the power, but not the duty, to file a substantial-assistance motion.

Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 1843, 118 L.Ed.2d 524


       1
        We review for abuse of discretion the district court’s denial of a petition for a writ of
mandamus. Kerr v. U.S. Dist. Ct. for the N. Dist. of Cal., 426 U.S. 394, 403, 96 S. Ct. 2119,
2124, 48 L.Ed.2d 725 (1976).

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(1992) (involving substantial-assistance motion under U.S.S.G. § 5K1.1 and 18

U.S.C. § 3553(e)); United States v. McNeese, 547 F.3d 1307, 1308–09 (11th Cir.

2008) (applying Wade to a Rule 35(b) motion). Although the government enjoys

broad discretion, the district court may review the government’s refusal to file a

Rule 35(b) motion if the defendant first makes a “substantial threshold showing”

that the refusal was based upon an unconstitutional motive, such as race or

religion. Wade, 504 U.S. at 185–86, 112 S.Ct. at 1843–44.

      Under the Mandamus Act, a district court may “compel an officer or

employee of the United States or any agency thereof to perform a duty owed to the

plaintiff.” 28 U.S.C. § 1361. “Mandamus is an extraordinary remedy which

should be utilized only in the clearest and most compelling of cases.” Cash v.

Barnhart, 327 F.3d 1252, 1257 (11th Cir. 2003) (quotation marks and alteration

omitted). The party seeking mandamus must demonstrate that “his right to

issuance of the writ is clear and indisputable.” In re BellSouth Corp., 334 F.3d

941, 953 (11th Cir. 2003) (quotation marks omitted). Mandamus relief is

appropriate only if: “(1) the plaintiff has a clear right to the relief requested; (2)

the defendant has a clear duty to act; and (3) no other adequate remedy is

available.” Cash, 327 F.3d at 1258 (quotation marks and alteration omitted).

      Here, the district court did not abuse its discretion in denying Mells’s

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petition for mandamus relief. As noted above, the law imposes no duty on the

government to file a substantial-assistance motion. See Wade, 504 U.S. at 185,

112 S.Ct. at 1843. And, because Mells did not allege (much less make a

“substantial showing”) that the government refused to file a Rule 35(b) motion due

to a constitutionally impermissible motive, the district court had no basis for

granting the writ. See id. at 185–86, 112 S.Ct. at 1843–44.

       Furthermore, Mells’s plea agreement does not require the government to file

a substantial-assistance motion. Rather, the government agreed only to “consider”

whether Mells’s cooperation constituted substantial assistance. Given the plea

agreement’s language—which gave the government discretion to file a Rule 35(b)

motion and prohibited Mells from challenging that discretion—Mells can

demonstrate neither that he had a clear right to relief nor that the government had a

clear, nondiscretionary duty to file a substantial-assistance motion.2

       AFFIRMED.3


       2
        In any event, even if the government had somehow breached the plea agreement, Mells
would still not be entitled to mandamus relief because he had an adequate alternative
remedy—namely, a 28 U.S.C. § 2255 motion to vacate his sentence. See United States v.
Al-Arian, 514 F.3d 1184, 1191 (11th Cir. 2008) (stating that a § 2255 motion “may be used to
enforce promises made in a plea agreement”).
       3
         On appeal, Mells also argues that the district court abused its discretion by (1) failing to
liberally construe Mells’s pro se filings, (2) striking his reply brief in support of his petition,
(3) refusing to hold an evidentiary hearing on the petition, and (4) denying as moot his motion to
expand the record. These arguments wholly lack merit, and we decline to address them further.

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