           Case: 17-14055   Date Filed: 04/20/2018   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-14055
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:13-cr-00266-TCB-LTW-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

KEVIN HICKEY,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      ________________________

                              (April 20, 2018)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Kevin Hickey, a federal prisoner proceeding pro se, appeals the district

court’s denial of his motion to compel the government to file a Fed. R. Crim. P.

35(b) motion for a sentence reduction due to his post-sentence substantial

assistance. Hickey argues that the government breached its plea agreement when it

did not file a Rule 35 motion as the result of his post-sentencing substantial

assistance. He also argues that the government’s only motivation for failing to file

a motion for further sentence reduction was due to his homosexuality and

Catholicism.

      We review questions of the district court’s subject matter jurisdiction de

novo. United States v. Oliver, 148 F.3d 1274, 1275 (11th Cir. 1998). Whether a

district court may grant a downward departure from the guideline range under Rule

35 in the absence of the government’s motion is a question of law reviewed de

novo. See United States v. Forney, 9 F.3d 1492, 1498 (11th Cir. 1993) (reviewing

the government’s decision not to file a § 5K1.1 motion). We review de novo the

question of whether the government has breached a plea agreement. United States

v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998). We may affirm a district

court’s decision on grounds that the district court did not address. See Ochran v.

United States, 273 F.3d 1315, 1317-18 (11th Cir. 2001).

      Under the Sentencing Guidelines, the government may file a motion

informing the district court of the defendant’s substantial assistance and request a


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downward departure. See U.S.S.G. § 5K1.1. Under Rule 35(b), “[u]pon the

government’s motion,” the district court may reduce a defendant’s sentence after

he has been sentenced if the defendant provided substantial assistance in

investigating or prosecuting another defendant. Fed. R. Crim. P. 35(b). When the

defendant has provided substantial assistance, the government has the power, but

not the duty, to file a substantial assistance motion. See Wade v. United States, 504

U.S. 181, 185 (1992) (addressing the government’s failure to file a substantial

assistance motion in the § 5K1.1 context); see also United States v. McNeese, 547

F.3d 1307, 1308-09 (11th Cir. 2008) (applying Wade in the Rule 35(b) context).

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

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

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

religion. Wade, 504 U.S. at 185-86 (quotation marks omitted). However, “[a]

defendant who merely claims to have provided substantial assistance or who makes

only generalized allegations of an improper motive is not entitled to a remedy or to

even an evidentiary hearing.” United States v. Dorsey, 554 F.3d 958, 961 (11th

Cir. 2009). Thus, judicial review generally is 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.” Forney, 9 F.3d at 1502.


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      We have explained that “[t]he substantial assistance regime is not a spoils

system designed simply to reward a cooperative defendant; it is designed to benefit

the government in its prosecution efforts.” United States v. Orozco, 160 F.3d

1309, 1316 (11th Cir. 1998) (quotation marks omitted). We have concluded that a

defendant’s argument that the government could not refuse to file a substantial-

assistance motion for “reasons other than the nature of [defendant’s] substantial

assistance” was not supported by Wade, and it was contrary to the “broad grant of

prosecutorial discretion recognized by this court.” United States v. Nealy, 232

F.3d 825, 831 (11th Cir. 2000) (quotation marks omitted) (brackets in original).

Accordingly, even though the government conceded that the defendant’s assistance

had been substantial, we did not review the government’s decision not to file a

motion for a reduction of the defendant’s sentence in the absence of an

unconstitutional motive. See id.

      If the defendant makes a threshold showing that the government’s refusal to

file a substantial assistance motion was a breach of the express terms of the plea

agreement, an evidentiary hearing and relief may be appropriate. See Forney, 9

F.3d at 1500-03 & nn. 2, 5. However, where a plea agreement requires the

government only to consider filing a Rule 35 motion and places the decision solely

in the hands of the government, the government retains this power and does not

breach the agreement by failing to file such a motion. See id. at 1499-1500.


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Accordingly, under these circumstances, the district court has no jurisdiction to

review whether the defendant in fact offered substantial assistance “unless and

until the government makes a . . . motion for downward departure based on

substantial assistance.” See id. at 1499-1502 & n.2.

      The district court lacked jurisdiction to consider Hickey’s motion because

the government did not breach its plea agreement with Hickey and he did not make

a substantial showing that the government’s failure to file a motion was based on

unconstitutional reasons.

      AFFIRMED.




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