           Case: 15-12778   Date Filed: 07/21/2016   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-12778
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:00-cr-00376-JAL-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

EDWARD LEZCANO,
a.k.a. Manuel,
a.k.a. Tony,

                                                         Defendant-Appellant.

                      ________________________

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

                             (July 21, 2016)

Before WILSON, MARTIN and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Edward Lezcano appeals the district court’s denial of his motion to compel

the government to file a Federal Rule of Criminal Procedure 35(b) motion for a

sentence reduction based on his substantial assistance. On appeal, Lezcano argues

that the government refused to file the Rule 35(b) motion on his behalf because he

exercised his constitutional right to a jury trial. Additionally, Lezcano asserts that

the district court should have granted a writ of mandamus pursuant to 28 U.S.C.

§ 1361 because he had a clear right to a Rule 35(b) motion, the government had a

clear duty to act, and there was no other adequate remedy. After careful review,

we affirm.

      After sentencing, a court may reduce a defendant’s sentence where the

government moves for a reduction under Rule 35(b) based on the defendant’s

substantial assistance in investigating or prosecuting another person.

Fed. R. Crim. P. 35(b). “In evaluating whether the defendant has provided

substantial assistance, the court may consider the defendant’s presentence

assistance.” Fed. R. Crim. P. 35(b)(3). However, a defendant can receive a

sentence reduction under Rule 35(b) more than one year after sentencing only if his

substantial assistance involves: (a) information not known to him until one year or

more after sentencing; (b) information provided by the defendant to the

government within one year of sentencing that did not become useful to the

government until more than one year after sentencing; or (c) information, the


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usefulness of which could not reasonably have been anticipated by the defendant

within one year of sentencing. Fed. R. Civ. P. 35(b)(2). The government generally

has the power, but not the duty, to file such a motion. United States v. McNeese,

547 F.3d 1307, 1308 (11th Cir. 2008) (per curiam).

      If the government explicitly promised to file a Rule 35(b) motion in a plea

agreement, we analyze its failure to comply with the plea agreement under contract

principles. See Forney, 9 F.3d at 1499–1500 & n.2. However, where the filing of

a Rule 35(b) motion is discretionary, as it is here, review of a prosecutor’s refusal

to file is appropriate only where that refusal was based on an unconstitutional

motivation, such as race or religion. Id. at 1502. Thus, a defendant’s claim that he

provided substantial assistance does not entitle him to a remedy or even an

evidentiary hearing. Wade v. United States, 504 U.S. 181, 186, 112 S. Ct. 1840,

1844 (1992).

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

file a substantial assistance motion. See United States v. Forney, 9 F.3d 1492,

1498 (11th Cir. 1993). We review a district court’s factual findings regarding a

defendant’s substantial assistance for clear error. United States v. Carlson, 87 F.3d

440, 447 (11th Cir. 1996).

      A district court has original jurisdiction to “compel an officer or employee

of the United States or any agency thereof to perform a duty owed to the plaintiff.”


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28 U.S.C. § 1361. A writ of mandamus is appropriate only if the plaintiff

establishes that: (1) he 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 v.

Barnhart, 327 F.3d 1252, 1258 (11th Cir. 2003) (per curiam) (quotation omitted)

(alteration adopted). Denials of a motion for a writ of mandamus are reviewed for

abuse of discretion. See In re Stewart, 641 F.3d 1271, 1275 (11th Cir. 2011) (per

curiam).

      The district court did not clearly err in finding that the government declined

to file for a sentence reduction under Rule 35(b) based on the untimeliness of

Lezcano’s cooperation. Although Lezcano argues that the government’s motive

for not filing the motion is retribution for his exercising his right to trial, Lezcano

presents no direct evidence indicating that the government’s refusal to file was

based on this ground. Instead, the letters between counsel and the government that

Lezcano submitted in support of his motion to compel indicate that the prosecutors

have consistently stated that they would not file the Rule 35(b) motion because

Lezcano’s cooperation was untimely. This is not an unconstitutional

consideration.

      Although Lezcano asserts that the timeliness issue is pretext, he has not

shown that the district court clearly erred in concluding that timeliness was the

motivation. Lezcano claims the government’s concentration on his failure to


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cooperate in the Magluta-Falcon prosecutions is evidence that they are punishing

him for exercising his right to trial. However, Lezcano completely disregards the

fact that he could have exercised his right to trial and then cooperated with the

government within a year of his sentencing. Although Lezcano may disagree with

the government’s conclusion that his cooperation was untimely, the ultimate

decision as to whether Lezcano qualifies under Rule 35(b) is within the

government’s discretion. Absent an unconstitutional motive, the government’s

decision is not subject to review by this Court. On this record, the district court did

not clearly err in finding that the government’s motivation for not filing the Rule

35(b) motion was the untimeliness of Lezcano’s cooperation, and therefore

denying Lezcano’s motion to compel.

      Because Lezcano has not shown that he is entitled to a Rule 35(b) motion, a

writ of mandamus is also inappropriate. Lezcano has neither shown that he has a

clear right to a sentence reduction under Rule 35(b) nor that the government has a

clear duty to act. See Cash, 327 F.3d at 1258. The district court did not therefore

abuse its discretion in denying Lezcano’s alternative petition for a writ of

mandamus.

AFFIRMED.




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