                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            May 27, 2008
                             No. 07-13958                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket No. 04-60186-CR-UU

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

MARK ANTHONY MIGNOTT,

                                                         Defendant-Appellant.


                       ________________________

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

                              (May 27, 2008)

Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
      Federal prisoner Mark Anthony Mignott appeals the district court's denial of

his motion to compel the Government to file a Federal Rule of Criminal Procedure

35(b) motion to reduce his sentence for substantial assistance. Mignott asserts the

Government breached his written plea agreement when it failed to seek a

sentencing reduction under Rule 35 based on his cooperation. Mignott also

contends the district court may review the Government’s refusal to file a Rule 35

motion because the refusal was based on an unconstitutional motive–race, and was

not rationally related to any legitimate motive. Finally, he argues that, as he

offered evidence of unconstitutional conduct that went beyond a “generalized

allegation of improper motive,” he was entitled to an evidentiary hearing.

      After a sentence has been imposed, upon motion of the government made

more than one year after sentencing, a district court may reduce a defendant’s

sentence based on substantial assistance if the defendant’s substantial assistance

involved information: (1) not previously known to the defendant; (2) not useful to

the government until more than a year after the defendant’s sentencing; or (3) the

usefulness of which was not reasonably anticipated by the defendant, until more

than one year after sentencing. Fed. R. Crim. P. 35(b)(2). We have held the

government has “‘a power, not a duty, to file a motion when a defendant has

substantially assisted.’” United States v. Forney, 9 F.3d 1492, 1500 (11th Cir.



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1993) (quoting Wade v. United States, 112 S. Ct. 1840, 1843 (1992) (holding such

in the context of U.S.S.G. § 5K1.1)). Where a plea agreement requires the

government only to “consider” filing a Rule 35 motion and places the decision

“solely” in the hands of the government, the government retains this “power” and

does not breach the agreement by failing to file such a motion. See id. at 1499-

1500. The district court has no jurisdiction to review whether the defendant in fact

offered substantial assistance. See id. at 1499-1502 & n.2 (“The district court and,

consequently, this court do not evaluate the assistance rendered by a defendant

offering cooperation as a term of his plea agreement unless and until the

government makes a 5K1.1 motion for downward departure based on substantial

assistance. Thus, the courts are precluded from intruding into prosecutorial

discretion.”) (internal citation omitted).

      “Judicial review is appropriate when there is an allegation and a substantial

showing that the prosecution refused to file a substantial assistance motion because

of a constitutionally impermissible motivation, such as race or religion.” Forney, 9

F.3d at 1502 (emphasis in original). A defendant who merely claims to have

provided substantial assistance, or who makes only generalized allegations of

improper motive, is not entitled to a remedy or even to discovery or an evidentiary

hearing. Wade, 112 S. Ct. at 1844.



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      As an initial matter, Mignott argues, for the first time on appeal, that the

district court erred in failing to compel the Government to file a Rule 35 motion

because the Government’s refusal was a breach of the original, written plea

agreement. Because the plea agreement specifically stated the Government would

file a Rule 35 motion if, in its “sole and unreviewable judgment,” such a motion

was warranted, the district court did not have jurisdiction to review whether the

government had breached the plea agreement. See Forney, 9 F.3d at 1499-1502.

      The district court also did not err by denying Mignott’s motion to compel

the Government to file a Rule 35(b) motion because he failed to make a substantial

showing the Government’s refusal to do so was based on an unconstitutional

motive. See Forney, 9 F.3d at 1498 (11th Cir. 1993) (reviewing de novo whether

the district court could compel the Government to make a substantial assistance

motion). Mignott offered no evidence in support of his conclusory allegation that

he was treated differently from his codefendant based on his race. The

Government, however, pointed out reasonable distinctions between Mignott and

his codefendant, which would explain any difference in treatment. Further,

Mignott’s claim the Government acted in bad faith is insufficient to justify judicial

review. See United States v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000) (“[This




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court] limit[s its] review of the government's refusal to file substantial assistance

motions to claims of unconstitutional motive.”).

      Finally, the district court did not abuse its discretion by refusing to hold an

evidentiary hearing. See United States v. Gay, 251 F.3d 950, 951 (11th Cir. 2001)

(reviewing the district court’s denial of an evidentiary hearing for an abuse of

discretion). In the absence of a “substantial threshold showing” the refusal to file a

substantial assistance motion was based upon an unconstitutional motive, such as

race or religion, a defendant has no right to discovery or an evidentiary hearing on

this issue. Wade, 112 S. Ct. at 1844. Mignott was not entitled to an evidentiary

hearing because he failed to make a “substantial threshold showing” the

Government’s refusal to file a Rule 35(b) motion was based on a constitutionally

impermissible motive. Accordingly, we affirm the district court.

      AFFIRMED.




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