                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________          FILED
                                               U.S. COURT OF APPEALS
                            No. 09-14643         ELEVENTH CIRCUIT
                                                     APRIL 1, 2011
                        Non-Argument Calendar
                                                      JOHN LEY
                      ________________________
                                                       CLERK

                  D. C. Docket No. 06-20045-CR-ASG


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

JUAN JOSE FERNANDEZ-LEAL,
a.k.a. Juanito,
a.k.a. Juan Fernandez-Leal,

                                                        Defendant-Appellant.


                      ________________________

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

                             (April 1, 2011)

Before EDMONDSON, HULL, and MARTIN, Circuit Judges.
PER CURIAM:



       Juan Jose Fernandez-Leal, 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) substantial assistance motion on his behalf and the denial of

his motion for reconsideration.1 No reversible error has been shown; we affirm.

       We review de novo whether the government can be compelled to make a

substantial assistance motion. United States v. Forney, 9 F.3d 1492, 1498 (11th

Cir. 1998). We review the denial of a motion for reconsideration for an abuse of

discretion. United States v. Simms, 385 F.3d 1347, 1356 (11th Cir. 2004).

       We conclude that the district court denied correctly Fernandez-Leal’s motion

to compel because Fernandez-Leal showed no constitutionally impermissible

motive. When the government does not file a substantial assistance motion, we

“are precluded from intruding into prosecutorial discretion,” except where there is

“an allegation and a substantial showing that the prosecution refused to file a

substantial assistance motion because of a constitutionally impermissible

motivation, such as race or religion.” Forney, 9 F.3d at 1501-02 (emphasis in




       1
       Fernandez-Leal had been convicted of a drug offense and sentenced to 97 months’
imprisonment.

                                             2
original).2 In his motion to compel, Fernandez-Leal alleged only that he provided

substantial assistance to the government; and he repeats those allegations on

appeal. But a defendant’s claim that he “merely provided substantial assistance

will not entitle a defendant to a remedy or even to discovery or an evidentiary

hearing.” See Wade v. United States, 112 S.Ct. 1840, 1843 (1992) (explaining that

the government has the power, but not the duty, to file a substantial assistance

motion when the defendant has provided substantial assistance).

       On appeal, Fernandez-Leal repeats an allegation -- which he made for the

first time in his reconsideration motion -- that the government discriminated

against him based on his religious beliefs because the government compelled him

to swear under oath before testifying in a grand jury proceeding.3 The district court

abused no discretion in denying reconsideration because Fernandez-Leal could

have raised this argument in his original motion to compel. See Wilchombe v.

TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (explaining that a motion

for reconsideration cannot be used to “raise argument or present evidence that

could have been raised prior to the entry of judgment,” and that this prohibition



       2
        Fernandez-Leal’s plea agreement did not require the government to file a substantial
assistance motion; instead, the terms of the agreement gave the government discretion to
evaluate Fernandez-Leal’s cooperation and to determine whether to seek a sentence reduction on
his behalf.
       3
           In his grand jury testimony, Fernandez-Leal identified his supplier of drugs.

                                                   3
included new arguments “previously available, but not pressed”). And even still,

Fernandez-Leal’s contention that the government violated his First Amendment

rights by compelling him to take an oath relates to whether he voluntarily testified

at a grand jury hearing, not to the government’s failure to file a Rule 35(b) motion

on his behalf.

      Because Fernandez-Leal made no allegation and substantial showing of a

constitutionally impermissible motive, we affirm the district court’s denial of his

motion to compel the government to file a Rule 35(b) motion and the denial of

reconsideration.

      AFFIRMED.




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