              Case: 12-14461     Date Filed: 04/23/2013   Page: 1 of 5


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 12-14461
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 1:09-cr-20403-DMM-1



UNITED STATES OF AMERICA,

                                                           Plaintiff - Appellee,

                                       versus

RUDIER JARDINES,

                                                           Defendant - Appellant.

                           ________________________

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

                                  (April 23, 2013)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

      Rudier Jardines, proceeding pro se, appeals the district court’s denial of his

motion to compel the government to move for a sentence reduction based on
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substantial assistance under Federal Rule of Criminal Procedure 35(b). For the

following reasons, we affirm.

       In 2009, a grand jury indicted Jardines on five counts of identity-theft

offenses. After pleading not guilty at arraignment, Jardines advised the district

court of his intent to change his plea. The court scheduled a change-of-plea

hearing, but Jardines did not appear; instead, he fled to Mexico for nearly two

years. Upon his return in 2011, Jardines pleaded guilty to all five counts in the

indictment. At his guilty-plea hearing, Jardines’s counsel acknowledged that there

was no plea agreement with the government.

       At sentencing on June 21, 2011, the district court adopted the presentence

investigation report’s sentencing guidelines calculation but varied below the

resulting range, ultimately sentencing Jardines to 48 months’ imprisonment. 1 The

government did not seek a substantial-assistance sentence reduction at sentencing,

nor did it thereafter.

       On July 30, 2012,2 Jardines moved to compel the government to file a Rule

35(b) motion for a sentence reduction. Rule 35(b) authorizes a district court,

“[u]pon the government’s motion,” to reduce the sentence of a defendant who has

provided “substantial assistance in investigating or prosecuting another person.”


1
   Jardines did not directly appeal his convictions or sentence.
2
   Because Jardines is incarcerated and pro se, we deem his motion filed on the day he delivered
it to prison authorities. See Washington v. United States, 243 F.3d 1299, 1301 (11th Cir. 2001).
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Fed. R. Crim. P. 35(b)(1). Jardines sought to enforce an alleged “deal” with the

government to have information he alleged he provided to the prosecutor taken

into account at sentencing via U.S.S.G. § 5K1.1 or “sent to the judge for a petition

under Rule 35(b)” after sentencing. He requested an evidentiary hearing on the

matter. Before the government responded, the court denied the motion, reasoning

that the court generally cannot force the government to make such a motion, and

declining to order the government to do so in this case. Jardines appealed.

      We review de novo whether the district court can compel the government to

file a substantial-assistance motion. See United States v. Forney, 9 F.3d 1492,

1498 (11th Cir. 1993). Jardines first argues that the government agreed to file a

substantial-assistance motion on his behalf at sentencing or via Rule 35(b). This

contention, supported only by conclusory statements in Jardines’s affidavit to the

district court, is belied by the record. At his plea hearing, defense counsel stated

there was no agreement between Jardines and the government. And at sentencing,

neither Jardines nor his counsel referred to any assistance to the government or

requested a downward departure under § 5K1.1. Jardines provides no explanation

for the incongruity between these facts and his subsequent allegation. We

therefore reject his newly-minted assertion that he struck a deal with the

government. See Lynn v. United States, 365 F.3d 1225, 1238-39 (11th Cir. 2004)




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(rejecting conclusory affidavits in a § 2255 proceeding as insufficient to warrant

relief or to entitle petitioner to an evidentiary hearing).

      In the absence of a promise to do so, the government has the authority – but

not the duty – to file a motion to reduce a sentence when a defendant has provided

substantial assistance to the government. Wade v. United States, 504 U.S. 181, 185

(1992). The district court can review the government’s refusal to file a Rule 35(b)

motion but may grant relief only upon finding the government’s refusal was based

on an unconstitutional motive. Id. at 185-86. “It follows that a claim that a

defendant merely provided substantial assistance will not entitle a defendant to a

remedy or even to discovery or an evidentiary hearing.” Id. at 186. “Nor would

additional but generalized allegations of improper motive.” Id.

      Jardines cannot establish the government’s refusal to file a Rule 35(b)

motion was based on an unconstitutional motive. See id. at 185-86. Jardines

primarily argues the government refused to file the motion as retaliation because

he skipped bail. This is clearly inadequate to entitle Jardines to relief or an

evidentiary hearing. See id. Likewise, his general allegation that the government’s

failure to move for a reduction was “based on bad faith or other unconstitutional




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motive” is flatly insufficient. See id. at 186. 3 Accordingly, the district court

correctly denied Jardines’s motion to compel.

       AFFIRMED.




3
  Because Jardines filed his motion more than a year after sentencing, the government was only
permitted to file – and, therefore, the district court could only compel the government to file – a
Rule 35(b) motion if the court determined that the assistance Jardines provided satisfied Rule
35(b)(2). Even assuming the assistance Jardines provided meets one of the Rule 35(b)(2)
requirements, as set forth herein, Jardines failed to meet his burden in this case.
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