                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            OCT 6, 2008
                             No. 08-10254                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                 D. C. Docket No. 94-00065-CR-T-24-TBM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JASON SPENCER WEEKS,

                                                         Defendant-Appellant.


                       ________________________

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

                            (October 6, 2008)

Before TJOFLAT, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
      Jason Weeks, a federal prisoner, appeals the district court’s denial of his

petition for a writ of mandamus to compel specific performance by the government

to comply with its oral agreement to file a Federal Rule of Criminal Procedure

35(b) motion for a reduction of his sentence. The district court did not abuse its

discretion by denying the petition without first holding an evidentiary hearing to

determine if the government was acting in good faith because contract principles

do not apply and Weeks has not made an allegation or substantial showing that the

government’s decision not to file the motion was based on a constitutionally

impermissible motive. Accordingly, we AFFIRM.

                                I. BACKGROUND

      In 1994, a jury convicted Weeks on multiple counts, including conspiracy to

defraud, in violation of 18 U.S.C. § 371 (Count 1); mail fraud, in violation of 18

U.S.C. § 1341 (Counts 2-5); wire fraud, in violation of 18 U.S.C. § 1343 (Counts

6, 7); money laundering, in violation of 18 U.S.C. § 1956 (Counts 9, 10); interstate

transportation of stolen property, in violation of 18 U.S.C. § 2314 (Count 11);

conspiracy to murder, in violation of 18 U.S.C. § 1117 (Count 14); illegal

possession of silencers, in violation of 26 U.S.C. § 5861 (Count 15); and illegal

possession of firearms and ammunition by fugitives, in violation of 18 U.S.C.

§ 922 (Counts 16, 17). Weeks was sentenced to 360 months’ imprisonment.



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      In 2007, Weeks filed a motion pursuant to 28 U.S.C. § 1361 to compel

specific performance by the government to comply with an alleged oral agreement

to file a Rule 35(b) motion. Weeks stated that he was entitled to an evidentiary

hearing and wanted the district court to order the government to fully and faithfully

evaluate his post-sentence cooperation in the prosecution of Joseph Cuciniello.

Additionally, Weeks urged the court to issue a report and recommendation

determining whether his aid qualified him for a Rule 35(b) motion. If the

government did file a Rule 35(b) motion, Weeks requested a four-level offense

reduction in his sentence, or in the alterative, a re-sentencing hearing.

      In his motion, Weeks argued that the government had orally agreed to file an

Rule 35(b) motion if he assisted the government in obtaining the arrest or

conviction of Cuciniello. Weeks claimed that the government also stated that it

would consider filing an Rule 35(b) motion if codefendant Theodore Navolio or

Weeks’s sister Melissa Ceresoli provided substantial assistance in several other

criminal matters. Navolio’s affidavit stated that , if substantial assistance was

provided, the government indicated that it would consider filing a Rule 35(b)

sentence reduction motion regarding Weeks’s sentence. Weeks claims that he

assisted Navolio in providing the government with information concerning an

ecstasy, firearms, and child pornography ring.



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      In addition, Weeks asserted that the government orally agreed to file an Rule

35(b) motion upon the arrest or conviction of Cuciniello. Weeks’s assistance

against Cuciniello included information concerning investor lists, money transfers,

deposits, withdrawals and wire transfers, corporate entity lists, and additional

incriminating information. After Weeks volunteered to be placed in Cuciniello’s

cell to extract more information, the government told him that he had already

provided substantial assistance and that it would be overkill to do anything more.

      Weeks asserted that his cooperation against Cuciniello was further bolstered

by Ceresoli’s cooperation with federal law enforcement. According to Ceresoli’s

affidavit, the government indicated that, if she provided information which led to

the arrest or conviction of another person, it would evaluate the cooperation for

consideration as to whether it qualified Weeks’s for a sentence reduction based

upon substantial assistance. Ceresoli indicated that she provided information on

Cuciniello’s illicit activities, which the government concluded was substantial

assistance.

      Cuciniello was found guilty on many different fraud related counts at trial.

After that conviction, Weeks claimed that he gave the government information on

a separate cocaine smuggling operation. The government informed Weeks that,




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due to his criminal record, it would not consider a Rule 35(b) motion unless he

could provide it with information on Osama Bin Laden’s whereabouts.

      The district court interpreted Weeks’s motion as a request for a report and

recommendation determining whether he was entitled to a Rule 35(b) substantial

assistance motion and denied it. Weeks moved for reconsideration, explaining that

the district court had misinterpreted his request because he was asking for the

district court to compel the government to provide the district court with a full

assessment of his cooperation and a report and recommendation determining in

good faith whether a Rule 35(b) reduction was warranted, and that he was not

asking the district court for the assessment or a determination of his entitlement to

a substantial assistance motion. Weeks stated that his motion was based on his

claim that the government’s refusal to evaluate his cooperation was without

rational justification and violated the cooperation agreement between Weeks and

the government. The district court directed the government to file a response.

      In its response, the government first argued that it considered the

information provided by Weeks, Ceresoli, and Novolio but concluded that none of

this information individually or aggregated was sufficient to merit the filing of a

Rule 35(b) motion. Second, the government asserted that Weeks failed to allege

that the government’s failure to file the Rule 35(b) motion was based on an



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unconstitutional motive. Further, the government denied that it promised Weeks

that it would file a Rule 35(b) motion upon the arrest or conviction of Cuciniello.

The government maintained that it only agreed to evaluate the nature and extent of

the cooperation and determine whether it qualified for a sentence reduction. The

government concluded that, to the extent Weeks sought a good faith evaluation of

his assistance, his motion was moot since its response provided him the relief he

sought, and his request for sentencing reduction should be denied.

      The district court denied Weeks’s motion to reconsider. The court found

that the government made a good faith evaluation of the cooperation by Weeks and

others on his behalf and found that the cooperation did not merit the filing of a

Rule 35(b) motion. In addition, Weeks failed to make a substantial showing that

the government’s refusal to file a Rule 35(b) motion was not rationally related to a

legitimate government end.

                                 II. DISCUSSION

      On appeal, Weeks argues that the government violated its oral contractual

agreement by not filing a Rule 35(b) motion upon the arrest of Cuciniello. He

contends that, because there was a cooperation agreement, the government’s

refusal to make a Rule 35(b) motion was in bad faith. Weeks concedes that

normally the government has the power, not a duty, to file a Rule 35(b) motion, but



                                          6
that the government contracted away its right to deny Weeks credit once the

agreed-upon information was furnished and Cuciniello was arrested. Weeks

argues that he was entitled to a hearing and an opportunity to present Bureau of

Prisons recorded telephone conversations evidencing the government’s promises.

      Since Weeks sought relief pursuant to 28 U.S.C. § 1361, his motion to

compel performance is a mandamus petition, and the district court’s denial of a

petition for a writ of mandamus is reviewed for abuse of discretion. Kerr v. United

States D.Ct. for the N.D. of Cal., 426 U.S. 394, 403, 96 S. Ct. 2119, 2124 (1976).

Under an abuse of discretion analysis, we “must affirm unless we find that the

district court has made a clear error of judgment, or has applied the wrong legal

standard.” Amlong & Amlong, P.A. v. Denny’s Inc., 500 F.3d 1230, 1238 (11th

Cir. 2007) (citations and internal quotations omitted).         “[T]he remedy of

mandamus is a drastic one, to be invoked only in extraordinary situations. . . .

Only exceptional circumstances, amounting to a judicial usurpation of power, will

justify the invocation of this extraordinary remedy.” In re BellSouth Corp., 334

F.3d 941, 953 (11th Cir. 2003). “The party seeking mandamus has the burden of

demonstrating that its right to issuance of the writ is clear and indisputable.” Id.

(citation and internal quotations omitted).   “Mandamus . . . lies only to confine a

lower court within its jurisdiction or to compel it to perform ministerial, not



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discretionary, functions.”   Weber v. Coney, 642 F.2d 91, 92 (5th Cir. Unit A

1981) (per curiam).

      Rule 35(b) allows the government to move to reduce a defendant’s sentence

after sentencing when the defendant provides substantial assistance in investigating

or prosecuting another person. See Fed. R. Crim. P. 35(b). The government has

the power, but not the duty, to file a Rule 35(b) motion when the defendant has

provided substantial assistance. Wade v. United States, 504 U.S. 181, 185, 112 S.

Ct. 1840, 1843 (1992). “U.S.S.G. § 5K1.1 and Rule 35(b) work in tandem to give

the Government two opportunities to reward a defendant’s substantial assistance in

the investigation or prosecution of others.” United States v. Alvarez, 115 F.3d

839, 842 (11th Cir. 1997).        “Section 5K1.1 addresses cooperation before

sentencing while Rule 35(b) addresses cooperation after sentencing.” Id.

      The Supreme Court has held that federal district courts may review the

government’s refusal to file a substantial-assistance 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 185-87, 112

S. Ct. at 1843-44. In the absence of this showing, the defendant has no right to

discovery or an evidentiary hearing on this issue. Id. 504 U.S. at 186, 112 S. Ct. at

1844. In Wade, the Court noted that a defendant would be entitled to relief if the



                                         8
prosecutor’s refusal to move was not rationally related to any legitimate

government interest. Id. at 186, 112 S. Ct. at 1844. Applying the Supreme Court’s

holding in Wade, we have concluded that “courts are precluded from intruding into

prosecutorial discretion,” except where there is “an allegation and a substantial

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

of a constitutionally impermissible motivation, such as race or religion.” United

States v. Forney, 9 F.3d 1492, 1501-02 (11th Cir. 1993).

      In Forney, we noted that general contract principles do not control when the

government has not specifically agreed to file a § 5K1.1 motion, and, therefore,

there must be a substantial showing of an unconstitutional motivation in order to

warrant judicial review. Id. at 1500, n.3. On the other hand, when a plea rests in

any significant portion on the government's promise or agreement, so that it

becomes part of the inducement or consideration, such promise must be fulfilled.

Santobello v. New York, 404 U.S. 257, 261-62, 92 S. Ct. 495, 498-99 (1971).

      As an initial matter, the government asserts that Weeks’s appeal is moot

because it provided Weeks a good faith evaluation of why it did not file a Rule

35(b) motion. Weeks’s mandamus petition, however, was not solely seeking a

good faith evaluation; he was also seeking enforcement of his alleged oral contract,




                                         9
an evidentiary hearing, and a reduction in his sentence. Therefore, Weeks’s appeal

is not moot.

      The district court did not abuse its discretion by denying the petition for a

writ of mandamus.      Weeks’s case is distinguishable from Santobello, in that

although Weeks alleges that there was a specific oral agreement requiring the

government to file a Rule 35(b) motion, the evidence in the record indicates, and

the district court implicitly found, that if there was any agreement, it did not

require the government to file a Rule 35(b) motion but only to consider whether

such a motion should be filed. The district court did not make a clear error of

judgment in finding no specific oral agreement.           Navolio stated that the

government indicated that it would consider whether any substantial cooperation

was provided and, if so, file a Rule 35(b) motion. Further, Ceresoli stated that the

government had assured her that, if she provided information which led to the

arrest or conviction of another person, it would evaluate the cooperation and

determine whether it qualified for a substantial assistance sentence reduction. Both

of these statements support the district court’s implicit finding that the government

was not contractually obligated to file a Rule 35(b) motion but instead would only

consider filing the motion.




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      Because there was no specific agreement requiring the government to file a

Rule 35(b) motion, the district court was authorized to review the government’s

refusal to file a substantial assistance motion only if it found that the refusal was

based on an unconstitutional motive, such as race or religion. Wade, 504 U.S. at

185-86, 112 S. Ct at 1843-44. Weeks’s claim that the government acted in bad

faith failed to allege, much less make a “substantial threshold showing,” that the

government’s refusal to file a Rule 35(b) motion was based on a constitutional

impermissible motive. Therefore, Weeks was not entitled to judicial review or an

evidentiary hearing.

                               III. CONCLUSION

      Weeks’ appeal from a denial of a write of mandamus to compel specific

performance by the government to abide by its putative oral agreement to file a

Rule 35(b) motion is without merit. The district court properly found that contract

principles did not apply to the putative agreement nor had Weeks made a

substantial showing that the government’s failure to act was based upon a

constitutionally impermissible motive.

      Accordingly, we AFFIRM.




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