                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                 FILED
                                                          U.S. COURT OF APPEALS
                                No. 08-14535                ELEVENTH CIRCUIT
                                                                MAY 13, 2009
                            Non-Argument Calendar
                                                             THOMAS K. KAHN
                          ________________________
                                                                  CLERK

                   D. C. Docket No. 04-00006-CR-1-MMP-AK

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                     versus

STEVEN DUNLAP,
a.k.a. Superintendent Duke,

                                                            Defendant-Appellant.


                          ________________________

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

                                 (May 13, 2009)

Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Stephen Dunlap, through counsel, appeals the district court’s denial of his

pro se motion to compel the government to comply with the terms of its plea and

cooperation agreement by submitting a Fed.R.Crim.P. 35(b) substantial assistance

motion. For the reasons set forth below, we affirm.

                                         I.

      A federal grand jury returned an indictment charging Dunlap and 5

codefendants with conspiracy to possess with intent to manufacture and distribute

more than 5 kilograms of cocaine and more than 50 grams of crack cocaine, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii) and (iii), and 846. Dunlap pled

guilty pursuant to a written plea and cooperation agreement. Per this agreement,

Dunlap would cooperate with the government through debriefings and trial

testimony, and the government had the “sole discretion” to submit a U.S.S.G.

§ 5K1.1 or Fed.R.Crim.P. 35(b) motion based on this assistance. Before

sentencing, the government submitted a § 5K1.1 motion. The government

specified, “The government files this motion on [Dunlap’s] behalf based upon [his]

agreement to continue his cooperation and testify against current [codefendants] in

the instant case and other individuals who he has identified and may be prosecuted

as this investigation continues,” and warned, “Such testimony will not qualify as a

basis for a future reduction of sentence under [Rule] 35,” and “No additional



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motion for substantial assistance shall be filed by the government based upon the

cooperation referred to above.” At sentencing, the district court noted that

Dunlap’s guideline imprisonment range was 360 months’ to life, but took into

account the § 5K1.1 motion and sentenced Dunlap to 150 months’ imprisonment.

      Dunlap filed the instant pro se motion to compel the government to perform

its promises under the plea and cooperation agreement. Dunlap asserted that, post-

sentencing, he had provided information and testimony that helped to secure the

conviction of Charles Wright, a co-conspirator who had been separately indicted,

but that the government refused to submit a Rule 35(b) motion based on this

assistance. The government responded that it had not promised that it would

submit a Rule 35(b) motion if Dunlap testified against Wright, and that Dunlap’s

assistance regarding Wright was covered by the § 5K1.1. motion.

      At an evidentiary hearing, Andrew Gillis, an agent with the Drug

Enforcement Agency assigned to Dunlap’s case, testified that the “other

individuals” to which the § 5K1.1 motion referred included Wright. When Dunlap

and his codefendants were indicted, the government knew of Wright’s activities

and that he was involved in the same conspiracy as Dunlap, but chose not to

include him on the same indictment for management purposes. Instead, the

government indicted Wright at some point after Dunlap was sentenced. Agent



                                          3
Gillis testified that, during post-sentencing interviews, Dunlap provided

information, and agreed to testify, against Wright. Dunlap raised the issue of the

government filing a Rule 35(b) motion “many times.” However, neither Agent

Gillis nor the government counsel ever told Dunlap that the government would do

so in connection with his assistance regarding Wright. Rather, on these occasions,

Gillis told Dunlap that their conversations still concerned the same conspiracy and

that, should Dunlap provide information on a “new case,” Gillis would notify

government counsel.

      The district court denied the motion to compel. The district court reasoned

that Dunlap had neither alleged nor made a substantial showing that the

government refused to submit a Rule 35(b) motion because of an unconstitutional

motive. The district court reasoned that, rather, the government declined to submit

a Rule 35(b) motion based on his assistance regarding Wright because it already

had submitted a § 5K1.1 motion that covered this assistance.

                                         II.

      We review de novo a district court’s decision that it lacks authority to reduce

a sentence under Rule 35(b). United States v. Orozco, 160 F.3d 1309, 1312-13

(11th Cir.1998). Pursuant to Rule 35(b), “[u]pon the government’s motion made

within one year of sentencing, the court may reduce a sentence if the defendant,



                                          4
after sentencing, provided substantial assistance in investigating or prosecuting

another person.” Fed.R.Crim.P. 35(b)(1). The Supreme Court has held that this

statute 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, 118 L.Ed.2d 524 (1992) (considering motions filed pursuant

to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1). Indeed, the Supreme Court held

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 defendant’s race or religion. Id. at 185-86,

112 S.Ct. at 1843-44. We have held that arguments that the government had

reasons other than the defendant’s provision of substantial assistance do not satisfy

the Supreme Court’s unconstitutional-motive standard. See United States v. Nealy,

232 F.3d 825, 831 (11th Cir. 2000). In Nealy, the government conceded that the

defendant had provided substantial assistance by testifying against his supplier. Id.

Five days after the defendant had provided this testimony, however, he was

arrested for again possessing crack cocaine with intent to distribute. Id. For that

reason, the government declined to file the substantial assistance motion. Id. The

defendant argued that the government could not refuse to file the motion for



                                          5
“reasons other than the nature of [defendant’s] substantial assistance.” Id. We

held that this contention was not supported by the Supreme Court’s

aforementioned ruling and “[was] contrary to the broad grant of prosecutorial

discretion recognized by this [C]ourt.” Id.

                                          III.

      The district court lacked the authority to compel the government to file a

Rule 35(b) motion. See Orozco, 160 F.3d at 1312-13. Dunlap has not made a

substantial showing that the government refused to do so based on an

unconstitutional motive, such as his race or religion. See Wade, 504 U.S. at 185-

86, 112 S.Ct. at 1843-44. Dunlap’s conclusory statements to this effect are

insufficient, especially as the government’s pleadings and Agent Gillis’s testimony

demonstrate that the government did not file a Rule 35(b) motion based on his

assistance regarding Wright because it believed this sentence was covered by the

§ 5K1.1 motion. See id. Likewise, Dunlap’s claim that the government’s reason

was not related to the type or quality of his assistance and lacked a rational

relationship to a government interest does not establish that he merits relief. See

Nealy, 232 F.3d at 831. Moreover, to the extent that Dunlap argues that the

government breached the terms of its plea agreement, his argument is without

merit, as the district court specifically retained “sole discretion” to submit a

substantial assistance motion and actually did so. Accordingly, we affirm.


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AFFIRMED.




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