                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS
                                                                         FILED
                               FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                                ________________________ ELEVENTH CIRCUIT
                                                                     MAY 18, 2011
                                       No. 10-12497                   JOHN LEY
                                   Non-Argument Calendar                CLERK
                                 ________________________

                          D.C. Docket No. 4:06-cr-00095-BAE-GRS-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                Plaintiff-Appellee,

                                            versus

KEVIN LAVOY ROBINSON,

lllllllllllllllllllll                                              Defendant-Appellant.

                                ________________________

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

                                        (May 18, 2011)

Before EDMONDSON, CARNES and ANDERSON, Circuit Judges.

PER CURIAM:

         Kevin Lavoy Robinson appeals pro se from the district court’s denial of his

“Motion to Compel Specific Performance,” which requested that the court order
the government to consider moving for a reduction in his prison sentence under

Federal Rule of Criminal Procedure 35(b) based on his substantial assistance. He

also appeals the denial of his motion for reconsideration and for an evidentiary

hearing.

                                          I.

      In February 2007 Robinson pleaded guilty under a written plea agreement to

one count of possession with intent to distribute a quantity of cocaine

hydrochloride, in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C). In the plea

agreement the government agreed to “consider whether” Robinson’s cooperation

“qualifies as ‘substantial assistance’ pursuant to 18 U.S.C. § 3553(e) and Rule 35,”

but that agreement also made clear that “the determination as to whether the

defendant has provided ‘substantial assistance’ rests solely with the government.”

      In August 2009, Robinson filed what he styled as a “Motion to Compel

Specific Performance,” which relied on 28 U.S.C. § 1361 and discussed law

relating to mandamus relief and law relating to Rule 35 motions for substantial

assistance. On February 2, 2010, the district court denied the motion, reasoning

that “in essence” Robinson was merely seeking to have the government file a Rule

35(b) motion but that the decision to do so “rests solely within the discretion of the

government.” The court did not issue a separate judgment on its order.

                                          2
      On April 30, 2010, Robinson filed a motion for reconsideration of the

district court’s February 2 order. The court denied that motion on May 6, 2010,

and on May 21, 2010, Robinson mailed a notice of appeal as to both the denial of

his original motion and to the denial of his motion for reconsideration.

      The government moved to dismiss the appeal for lack of jurisdiction,

arguing that it was an untimely criminal appeal. We issued an order denying the

government’s motion to dismiss, holding that Robinson’s notice of appeal was

timely at least with respect to the district court’s denial of his motion for

reconsideration. We reasoned that because Robinson was requesting mandamus

relief under 28 U.S.C. § 1361, the civil appeal filing deadline applied, not the

deadline for criminal appeals. We carried with the case the issue of whether

Robinson’s notice of appeal was timely with respect to the district court’s denial

of Robinson’s motion to compel specific performance of the plea agreement. We

now consider that issue before turning to the merits.

                                          III.

      Under Rule 58 of the Federal Rules of Civil Procedure, every civil judgment

must be set out in a separate document. Fed. R. Civ. P. 58(a). But that rule also

includes five exceptions: “a separate document is not required for an order

disposing of a motion” under Rule 50(b), 52(b), 54, 59, or 60. Id. If the entry of a

                                           3
separate document is required, the time to appeal runs from the earlier of either (1)

the entry of a separate Rule 58 judgment or (2) when “150 days have run from

entry of the judgment or order in the civil docket under Federal Rule of Civil

Procedure 79(a).” Fed. R. App. P. 4(a)(7)(A)(ii); see Fed. R. Civ. P. 58, 79(a). In

a civil case where the United States is a party, a notice of appeal must be filed

within 60 days after the judgment or order appealed from is entered. Fed. R. App.

P. 4(a)(1)(B).

      Whether Robinson’s May 21st notice of appeal was timely with respect to

the court’s February 2nd order denying mandamus relief thus turns on the question

of whether the court needed to set out its judgment in a separate document.

Because the court did not in fact set out its order in a separate document, and

because none of the exceptions in Rule 58(a) apply, we assume for purposes of

this appeal that Robinson had 150 days from entry of the court’s February 2nd

order to file his notice of appeal. See Fed. R. App. P. 4(a)(7)(A)(ii). Because he

mailed that notice on May 21, 2010, well within the 150 day period, we conclude

that his notice was timely with respect to both the court’s original order denying

mandamus relief and its order denying his motion for reconsideration. We now

turn to the merits.

                                         III.

                                          4
      We may review the government’s failure to file a Rule 35(b) motion only if

there is a substantial showing that the refusal was based on an unconstitutional

motive. United States v. McNeese, 547 F.3d 1307, 1308 (11th Cir. 2008).

Whether the government breached a plea agreement is reviewed de novo. United

States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998). A district court’s

decision not to hold an evidentiary hearing is reviewed only for an abuse of

discretion. See United States v. Winfield, 960 F.2d 970, 972 (11th Cir. 1992)

(holding that the district court did not abuse its discretion in denying a Rule 35

motion without conducting an evidentiary hearing). Likewise, denial of a motion

for reconsideration is reviewed only for abuse of discretion. Corwin v. Walt

Disney Co., 475 F.3d 1239, 1254 (11th Cir. 2007).

      The Supreme Court has held that Rule 35(b) gives the government “a

power, not a duty, to file a motion when a defendant has substantially assisted.”

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

(considering motions filed under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1). The

Supreme Court also made clear in Wade that the government’s discretion is such

that 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

                                          5
defendant’s race or religion. Id. at 185–86, 112 S.Ct. at 1843–44. We have held

that arguments that the government had motivations beyond the defendant’s

failure to provide substantial assistance do not satisfy the Supreme Court’s

unconstitutional-motive standard for review. See United States v. Nealy, 232 F.3d

825, 831 (11th Cir. 2000).

      In United States v. Forney, 9 F.3d 1492 (11th Cir. 1993), we also noted,

with respect to an argument regarding an alleged breach of a plea agreement, that

where the government promised “to consider” filing a substantial-assistance

motion, and where there was no evidence that the government did not consider the

defendant’s assistance, there was no basis for finding that the agreement had been

breached. Id. at 1498, 1500 n.2. The government was required only to consider

the defendant’s substantial assistance, and, absent a showing that it did not

consider it, there was no breach. Id.

      Robinson has not alleged any unconstitutional motives for why the

government did not file a substantial assistance motion. Further, there is no

evidence that the government failed to consider Robinson’s assistance and

whether it should file a Rule 35 motion on that basis. As a result, the district court

did not err in denying Robinson’s motion to compel specific performance or abuse

its discretion by failing to hold an evidentiary hearing and denying Robinson’s

                                          6
motion for reconsideration.

      AFFIRMED.




                              7
