                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT

                     _________________________          FILED
                                               U.S. COURT OF APPEALS
                            No. 11-12942         ELEVENTH CIRCUIT
                                                     JAN 17, 2012
                        Non-Argument Calendar
                                                      JOHN LEY
                     _________________________
                                                       CLERK

               D.C. Docket No. 7:07-cr-00025-WLS-TQL-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

ALFONSO MCCLOUD,

                                                        Defendant-Appellant.

                    ___________________________

               Appeal from the United States District Court
                   for the Middle District of Georgia
                   ___________________________

                           (January 17, 2012)

Before CARNES, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:
      Alfonso McCloud appeals pro se the district court’s denial of his motion to

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

post-sentencing substantial assistance. Because we conclude that the district court

properly determined that it lacked jurisdiction, we affirm.

      In 2007, McCloud pleaded guilty to possession with intent to distribute

more than fifty grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). In

his written plea agreement, McCloud waived his right to appeal or otherwise

collaterally challenge his sentence unless it exceeded the guidelines range, and he

agreed to cooperate with authorities. The government promised to consider

whether his cooperation prior to sentencing warranted a motion for a downward

departure under U.S.S.G. § 5K1.1. If his cooperation occurred after sentencing,

the government indicated that it would consider filing a motion for a reduction in

sentence under Rule 35(b). The plea agreement specifically explained that “the

determination as to whether the defendant has provided ‘substantial assistance’

rests solely with the government.”

      McCloud provided assistance prior to sentencing, and the government filed

a § 5K1.1 motion. At sentencing, a different Assistant U.S. Attorney appeared.

The district court considered the § 5K1.1 motion and departed downward from




                                          2
McCloud’s sentencing range of 262 to 327 months’ imprisonment. The court

sentenced McCloud to a term of 260 months.

      In 2010, McCloud filed the instant motion alleging that he provided

additional assistance after sentencing and thus was entitled to a sentence reduction

under Rule 35(b). The district court dismissed the motion for lack of subject

matter jurisdiction. McCloud now appeals, arguing that (1) the government

breached the plea agreement and the district court had jurisdiction to consider his

claim, and (2) he did not receive full credit for his pre-sentencing assistance

because a new Assistant U.S. Attorney handled his sentencing.

      We review a district court’s subject matter jurisdiction de novo. United

States v. Perez, 956 F.2d 1098, 1101 (11th Cir. 1992). We also review de novo

whether the district court can compel the government to file a substantial

assistance motion. United States v. Forney, 9 F.3d 1492, 1498 (11th Cir. 1993).

Generally, the government has the power, but not the duty, to file a motion to

reduce sentence when a defendant has provided substantial assistance to the

government. Wade v. United States, 504 U.S. 181, 185 (1992); United States v.

McNeese, 547 F.3d 1307, 1309 (11th Cir. 2008). The government’s refusal to file

a Rule 35(b) motion can be reviewed by the district court, and the district court




                                          3
can grant relief, only if it finds that the government’s refusal was based on an

unconstitutional motive, such as race or religion. Wade, 504 U.S. at 185–86.

       Here, McCloud did not allege that the government refused to file a

substantial assistance motion because it had an unconstitutional motive. Instead,

he belatedly alleged that the prosecution refused to file such a motion in bad faith

despite his post-sentencing assistance.1 The district court correctly determined

that it lacked jurisdiction to grant McCloud relief.

       McCloud’s reliance on Santobello v. New York, 404 U.S. 257 (1971), is

misplaced. As this court explained in Forney, Wade, not Santobello, applies to

claims such as McCloud’s. See Forney, 9 F.3d at 1499 n.2. Moreover, McCloud

cannot show any breach of the plea agreement. Under the terms of the plea

agreement, the government need only consider filing a Rule 35(b) motion, and

determination as to whether McCloud provided substantial assistance was solely

within the government’s purview. Accordingly, the district court properly denied

McCloud’s motion, and we need not reach the merits of his claim on appeal.

       AFFIRMED.




       1
         Because the district court properly determined that it lacked jurisdiction to consider
McCloud’s motion, we do not consider his claim that the substitution of a different Assistant
U.S. Attorney violated his due process rights.

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