                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                 April 13, 2009
                                No. 08-14637                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                      D. C. Docket No. 06-00088-CR-F-N

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

TONY MITCHELL,

                                                              Defendant-Appellant.


                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Alabama
                        _________________________

                                 (April 13, 2009)

Before BIRCH, HULL and WILSON, Circuit Judges.

PER CURIAM:

     Tony Mitchell, proceeding pro se, appeals the district court’s denial of his
motion to reduce sentence based on substantial assistance, under Fed. R. Crim. P.

35(b). On appeal, Mitchell argues that the district court erred in denying his Rule

35(b) motion to reduce sentence because, although only the government may file a

Rule 35 motion, he was merely trying to inform the court that he never received the

benefit of the government’s motion for downward departure.

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

a sentence under Fed. R. Crim. P. 35(b). United States v. Orozco, 160 F.3d 1309,

1312-13 (11th Cir. 1998).

      Rule 35(b) of the Federal Rules of Criminal Procedure provides that the

district court may reduce a defendant’s sentence to reflect substantial assistance

provided by the defendant to the government after sentencing only “[u]pon the

government’s motion.” Fed. R. Crim. P. 35(b)(1). As the language of the rule

indicates, the district court may only reduce a defendant’s sentence pursuant to

Rule 35(b) upon the government’s motion. United States v. Howard, 902 F.2d

894, 897 (11th Cir. 1990).

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

to reduce sentence when a defendant has substantially assisted. Wade v. United

States, 504 U.S. 181, 185 (1992) (analyzing substantial assistance motions under

U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e)). Thus, a district court only may review



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the government’s refusal to file a substantial assistance motion if the defendant

makes a showing that the refusal was based upon an unconstitutional motive, such

as his race or religion. Id. at 185-86.

       The district court did not err in finding that it lacked authority to grant

Mitchell’s Rule 35(b) motion to reduce sentence. Because the government never

filed a Rule 35(b) motion, the district court properly concluded that it lacked the

authority to reduce Mitchell’s sentence. In addition, the government’s failure to

file such a motion was not subject to review because Mitchell did not make any

showing that the government’s decision in that regard was based on an

unconstitutional motive.1

       Accordingly, Mitchell’s arguments are without merit and we affirm the

district court’s order denying his Rule 35(b) motion to reduce sentence.

       AFFIRMED.




       1
         We also note that, contrary to Mitchell’s assertion, he received the benefit of the
government’s U.S.S.G. § 5K1.1 motion when the district court granted the motion, reduced his
offense level one level, from 37 to 36, and, correspondingly, reduced his sentence.

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