                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________         U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                October 5, 2006
                               No. 06-10973                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                     D. C. Docket No. 00-00011-CR-3-RV

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

ISAAC CLARK,

                                                            Defendant-Appellant.


                         ________________________

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

                               (October 5, 2006)

Before BLACK, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

     Isaac Clark, a federal prisoner serving a 120-month sentence for conspiracy
to possess with intent to distribute cocaine and cocaine base, in violation of 21

U.S.C. § 846, appeals pro se from the district court’s denial of his motion to

compel specific performance of his plea agreement. He contends that the

government breached his plea agreement by failing, in its Federal Rule of Criminal

Procedure 35(b) motion, to fully inform the court of the extent of his cooperation.

Clark also argues that the district court erred by failing to hold an evidentiary

hearing on his motion to compel and by not specifically addressing the issues he

raised in that motion.

      We review de novo whether the district court may compel the government to

file an initial substantial-assistance motion or a supplemental one. United States v.

Forney, 9 F.3d 1492, 1498 (11th Cir. 1993). A district court’s decision not to hold

an evidentiary hearing is reviewed only for an abuse of discretion. United States v.

Winfield, 960 F.2d 970, 972 (11th Cir. 1992).

      Rule 35(b) allows a district court, on the government’s motion, to reduce a

defendant’s sentence to reflect substantial assistance provided by the defendant to

the government after sentencing. Fed.R.Crim.P. 35(b)(2). “Rule 35(b) ‘provides

the only avenue for reduction of a legally imposed federal prison sentence.’”

United States v. Orozco, 160 F.3d 1309, 1313 n.6 (11th Cir. 1998) (citation

omitted). The government has “a power, not a duty, to file a motion when a



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defendant has substantially assisted.” Forney, 9 F.3d at 1500 (quoting Wade v.

United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 1843 (1992)). Federal district

courts may review the government’s refusal to file a substantial-assistance motion

only if the defendant first makes a “substantial threshold showing” that the refusal

was based upon an unconstitutional motive, such as the defendant’s race or

religion. Wade, 504 U.S. at 185-86, 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. at 186, 112 S.Ct. at 1844.

      In the present case the district court lacked the authority to compel the

government to file another Rule 35(b) motion because Clark never alleged that the

government’s failure to file one was based on an unconstitutional motive. Instead,

Clark claimed that the government breached the plea agreement and acted in bad

faith by failing to fully inform the court of his assistance. This allegation is

insufficient to justify judicial review. Therefore, the district court was without

authority to review the government’s exercise of prosecutorial discretion, and

Clark was entitled to neither an order to compel nor an evidentiary hearing.

      AFFIRMED.




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