                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 06-10894                   JULY 17, 2006
                           Non-Argument Calendar            THOMAS K. KAHN
                                                                 CLERK
                         ________________________

                    D. C. Docket No. 02-00065-CR-4-RH-1

UNITED STATES OF AMERICA,


                                                       Plaintiff-Appellee,

                                    versus

TRENTON DENORM GREEN,

                                                       Defendant-Appellant.


                         ________________________

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

                              (July 17, 2006)

Before TJOFLAT, DUBINA and HULL, Circuit Judges.

PER CURIAM:

     On February 11, 2003, Trenton Green pled guilty pursuant to a plea
agreement to both counts of an indictment: Count One, armed bank robbery, in

violation of 18 U.S.C. §§ 2113(a), (d); Count Two, using and carrying a firearm in

relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(i) and (ii).

In the plea agreement, the Government reserved “absolute discretion” to file a

substantial assistance motion pursuant to U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e).

At sentencing, Green moved the district court to compel the Government to file

such a motion. The court denied the motion and sentenced Green to consecutive

prison terms of 70 months on Count One and 84 months on Count Two. Green

appealed his convictions and sentences, and we affirmed. United States v. Green,

107 Fed.Appx. 892 (Table)(June 4, 2004)(Case No. 03-12778-B).

      On September 2, 2005, Green moved the district court pursuant to Fed. R.

Crim. P. 35(b) to reduce his sentence based on his assistance to law enforcement.

He claimed that the Government had acted in bad faith and that it had infringed his

constitutional rights, i.e., by discriminating against him on account of his skin

color, in refusing to file a substantial assistance motion in exchange for his

cooperation in the prosecution of Eddie Ash. The court denied his motion, finding

that Green “alleged no basis for attributing to the government either an

unconstitutional motive or bad faith” in its refusal to file the requested motion.

Green now appeals the court’s ruling.



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      In his brief to us, Green argues that the Government failed to file a motion to

reduce his sentence because he is a darker-skinned African American than his

codefendant who received a reduction in his sentence pursuant to U.S.S.G.

§ 5K1.1. He says, moreover, that the Government acted in bad faith because Green

provided substantial assistance to the Government by testifying at a trial in a

murder case.

      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 not known by the defendant, not useful

to the government, or 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).

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.

2005), cert. denied, 126 S.Ct. 1116 (2006) 1500 (quoting Wade v. United States,

504 U.S. 181, 185, 112 S.Ct. 1840, 1843, 118 L.Ed.2d 524 (1992)) (U.S.S.G.

§ 5K1.1 substantial assistance context). We limit our “review of the government's

refusal to file substantial assistance motions to claims of unconstitutional motive.”

United States v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000). A defendant who



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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

discovery or an evidentiary hearing. Wade, 504 U.S. 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, such as race or

religion.” Forney, 9 F.3d at 1502. In the absence of a “substantial threshold

showing” that the refusal to file a substantial assistance motion was based upon an

unconstitutional motive, such as race or religion, a defendant has no right to

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

at 1844.

      In this case, the district court committed no error in denying Green’s motion

to compel the Government to file a Rule 35(b) motion because Green failed to

make a substantial showing that the Government’s refusal to do so was based on an

unconstitutional motive. Green offered no evidence in support of his conclusory

allegation that he was treated differently than his codefendant based on the color of

his skin. Further, Green’s claim that the Government acted in bad faith is

insufficient to justify judicial review. Finally, Green was not entitled to an

evidentiary hearing because he failed to make a substantial threshold showing that



                                           4
the Government’s refusal to file a Rule 35(b) motion was based on a

constitutionally impermissible motive.

      AFFIRMED.




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