                              NONPRECEDENTIAL DISPOSITION
                                To be cited only in accordance with
                                         Fed. R. App. P. 32.1



                     United States Court of Appeals
                                     For the Seventh Circuit
                                     Chicago, Illinois 60604
                                      Submitted May 16, 2008∗
                                       Decided May 22, 2008


                                               Before

                                FRANK H. EASTERBROOK , Chief Judge

                                ILANA DIAMOND ROVNER, Circuit Judge

                                DIANE P. WOOD, Circuit Judge

No. 07-3985
                                                                 Appeal from the United
UNITED STATES OF AMERICA,                                        States District Court for the
      Plaintiff-Appellee,                                        Central District of Illinois.

                v.                                               No. 98 CR 20042
                                                                 Michael P. McCuskey,
KEITH A. HALLIBURTON,                                            Chief Judge.
      Defendant-Appellant.




                                                Order

        Approximately eight years after we affirmed his conviction and sentence on
direct appeal, Keith Halliburton filed in the district court a motion asking the judge to
compel the United States Attorney to file a motion for sentence reduction under Fed. R.
Crim. P. 35(b). The district judge denied this motion summarily, and Halliburton has


∗ This successive appeal has been submitted to the original panel under Operating Procedure 6(b). After
examining the briefs and the record, we have concluded that oral argument is unnecessary. See Fed. R.
App. P. 34(a); Cir. R. 34(f).
No. 07-3985                                                                    Page 2

appealed.

          he motion is untimely. Rule 35(b)(1) allows the United States to propose a lower
sentence only within the first year after a sentence has been imposed. There is an
exception, see Rule 35(b)(2), for information that the defendant did not learn (or whose
value could not be assessed) until the year had passed. Halliburton does not contend
that his situation fits this exception. Instead he maintains that the United States promised
to file a motion and did not carry through. Any shortcoming on that subject could have
been raised long ago.

        What is more, Wade v. United States, 504 U.S. 181 (1992), holds that a district court
does not have authority to upset the prosecutor’s decision not to file a Rule 35(b) motion
unless the defendant first makes a prima facie showing that the prosecutor acted for an
unconstitutional reason. See also In re United States, 503 F.3d 638 (7th Cir. 2007).
Halliburton has not tried to show this. Instead he believes that the prosecutor must
provide the district judge with a good reason not to file a motion. That contention is
incompatible with Wade.

                                                                                  AFFIRMED
