                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                     FILED
                       ________________________          U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                               August 11, 2006
                              No. 05-13593                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                    D. C. Docket No. 96-00078-CR-3-RV

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

MICHAEL EDWARD DICKEY,
a.k.a. Michael Eugene Jackson,
a.k.a. Dickey Doo,

                                                          Defendant-Appellant.


                        ________________________

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

                             (August 11, 2006)

Before TJOFLAT, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:
      Michael Edward Dickey, 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. Dickey argues that, after a first

Rule 35(b) motion was made and granted, he entered into a new, oral agreement

with the government under which the government would file another 35(b) motion

if Dickey provided additional substantial assistance. He asserts that he has

provided such assistance, and that the government now must file another motion to

reduce his sentence.

      Although we review de novo the question of whether the government can be

compelled to file a substantial assistance motion, see United States v. Forney, 9

F.3d 1492, 1498 (11th Cir. 1993), a district court’s factual credibility

determinations warrant deference. United States. v. Ramirez-Chilel, 289 F.3d 744,

749 (11th Cir.2002). Like “all facts,” credibility determinations “are construed in

the light most favorable to the prevailing party below.” United States v. Bervaldi,

226 F.3d 1256, 1262 (11th Cir.2000).

      Dickey does not claim that the prosecution breached the written plea

agreement under which the government first submitted a successful substantial

assistance motion. By that agreement’s own terms, the government was free to

determine, absent unconstitutional motives, whether Dickey’s assistance was



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substantial and, on that basis, to decide whether to file a 35(b) motion. Rather,

Dickey claims that the government beached a subsequent, oral agreement. The

government disagrees. In addition to its specific and explicit counter-assertions on

appeal, the government implicitly denied that an oral agreement ever existed when

it certified to the district court the question of Dickey’s substantial performance.

      The district court was entitled to disbelieve Dickey’s claim that the

government promised him another 35(b) motion. Certainly this “understanding of

the facts” would not be “unbelievable.” See Ramirez-Chilel, 289 F.3d at 749. On

the contrary, the existence of a superceding oral agreement is dubious in light of

the terms of the written plea agreement, the government’s successful and good

faith performance of that agreement, and the subsequent lengths to which the

government went in the defendants’ relatively unproductive efforts to provide

substantial assistance. Accordingly, the judgment of the district court is

      AFFIRMED.




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