                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS
                                                                           FILED
                                   FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                                    ________________________ ELEVENTH CIRCUIT
                                                                       JUNE 20, 2011
                                            No. 11-10087                JOHN LEY
                                        Non-Argument Calendar             CLERK
                                      ________________________

                              D.C. Docket No. 9:08-cr-80063-KAM-4

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellee,

                                               versus

JUAN RAMON QUINONES,

llllllllllllllllllllllllllllllllllllllll                         Defendant - Appellant.

                                     ________________________

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

                                           (June 20, 2011)

Before TJOFLAT, CARNES and BLACK, Circuit Judges.

PER CURIAM:
      Juan Ramon Quinones appeals from the district court’s denial of his motion

to compel the Government to file a substantial assistance motion pursuant to

Federal Rule of Criminal Procedure 35(b). He asserts he is entitled to relief

because this Court’s precedent regarding discretionary Rule 35(b) motions does

not limit unconstitutional motives to race and religion, and his invocation of his

Sixth Amendment rights in support of his motion to compel met the threshold

standard for court review.

      Federal prosecutors are given vast discretion whether to file a substantial

assistance motion, and a prosecutor’s decision is subject to review only where the

defendant can make a threshold “substantial showing” before the district court that

the decision not to file the motion was motivated by an unconstitutional concern,

e.g., the defendant’s race or religion. United States v. McNeese, 547 F.3d 1307,

1308 (11th Cir. 2008). “We have held that arguments that the government had

motivations beyond the defendant’s provision of substantial assistance do not

satisfy the Supreme Court’s unconstitutional-motive standard for review.” Id.; see

also United States v. Forney, 9 F.3d 1492, 1502-03 n.5 (11th Cir. 1998) (generally

a district court need not consider claim the government acted in “bad faith” in

refusing to file substantial assistance motion). We have not defined the

parameters of constitutional motives subject to this inquiry, but have expressed a


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view that review is limited to matters involving “race, religion or other arbitrary

classification.” Forney, 9 F.3d at 1501 n.4.

      The district court did not err in finding Quinones failed to make a

substantial showing the Government refused to file a Rule 35(b) motion based

upon an unconstitutional motive. In support of his motion to compel, Quinones

offered nothing beyond a blanket—and counter-intuitive—claim the Government

was retaliating against him because he opted to waive his right to be represented

by counsel when testifying for the Government in the case against Juan Carlos

Cruz. It simply does not follow that the Government would somehow negatively

view Quinones’s decision not to have counsel in furtherance of his testimony in

the Cruz case, as Quinones’s actions in this regard likely helped the Government.

We agree with the district court’s conclusion that Quinones was simply

manufacturing a constitutional “hook” to avoid the application of this Court’s

precedent regarding review of substantial assistance disputes. Thus, we affirm the

district court’s denial of Quinones’s motion to compel under Rule 35(b).

      AFFIRMED.




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