                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              AUGUST 24, 2007
                               No. 07-11022                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                    D. C. Docket No. 04-60004-CR-DTKH

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

GLENN CHIESA,

                                                           Defendant-Appellant.


                         ________________________

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

                              (August 24, 2007)

Before ANDERSON, BLACK and MARCUS, Circuit Judges.

PER CURIAM:

     Glenn Thomas Chiesa, a federal prisoner proceeding pro se, appeals the
district court’s denial of his motion to compel the government to file a motion to

reduce his sentence under Federal Rule of Criminal Procedure 35(b). On appeal,

Chiesa argues that the government breached its plea agreement with him by

refusing in bad faith to file a Rule 35(b) motion to reduce his sentence. Chiesa

concedes that his argument is foreclosed by prior circuit precedent, but requests en

banc reconsideration of the settled issue raised in his appellate brief. Chiesa

further argues that the district court abused its discretion by denying his request for

an evidentiary hearing regarding his cooperation and substantial assistance.

      Federal Rule of Criminal Procedure 35(b) says that the government may, on

its own motion, ask the district court to reduce a defendant’s sentence if the

defendant provides the government with substantial assistance. Fed.R.Crim.P.

35(b). The government may, but is not required to, file a motion to reduce the

sentence of a defendant who has rendered substantial assistance. See United States

v. Forney, 9 F.3d 1492, 1500 (11th Cir. 2005). “[F]ederal district courts have

authority to review a prosecutor’s refusal to file a substantial-assistance motion and

to grant a remedy if they find that the refusal was based on an unconstitutional

motive.” Wade v. United States, 504 U.S. 181, 185-86, 112 S. Ct. 1840, 1844-45,

118 L.Ed.2d 524 (1992). The district court’s decision not to grant an evidentiary

hearing is reviewed for abuse of discretion. See United States v. Winfield, 960



                                           2
F.2d 970, 972 (11th Cir. 1992).

      It is clear on the face of the plea agreement entered into between Chiesa and

the government that the government retained discretion to file a Rule 35 motion.

Chiesa concedes that he has not shown that the government’s refusal to file a Rule

35(b) motion was based on an unconstitutional motive. Chiesa takes issue with

this Court’s precedent; however, “only the Supreme Court or this Court sitting en

banc can judicially overrule a prior panel decision.” United States v. Marte, 356

F.3d. 1336, 1344 (11th Cir. 2004). Chiesa alleged that he was entitled to an

evidentiary hearing to resolve disputed material facts. However, even if Chiesa

provided the assistance that he says he did, the government still retained the

discretion under the plea agreement to evaluate “the nature and extent” and the

“quality and significance” of Chiesa’s assistance and to determine whether a Rule

35(b) motion was appropriate. Moreover, Chiesa has not made a “substantial

threshold showing” of an unconstitutional motive. See Wade, 504 U.S. 186, 112 S.

Ct. at 1844 (noting that defendant conceded he had no right to evidentiary hearing

without making “substantial threshold showing” that refusal was based on suspect

reason such as race or religion). Thus, the district court did not abuse its discretion

by declining to hold an evidentiary hearing. For the foregoing reasons, the district

court did not err in denying Chiesa’s motion to compel the government to file a



                                           3
motion pursuant to Federal Rule of Criminal Procedure 35(b) to reduce his

sentence. Accordingly, we affirm.1




       1
          Chiesa makes a passing argument that the government’s refusal to file a Rule 35 motion
was not “rationally related to a legitimate government end.” (Blue Brief at 7). However, Chiesa
does not support this argument, does not identify the government end to which the refusal should
be related, and does not otherwise explain why the denial was not rationally related to a
legitimate government end. Therefore, because Chiesa did not support this argument, he has
abandoned it. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir.
1989) (passing reference in appellate brief is insufficient to raise an issue). Moreover, Chiesa
did not raise this issue below. Therefore, the standard of review, assuming the issue were not
abandoned, would be plain error. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th
Cir.), cert. denied, 545 U.S. 1127, 125 S. Ct. 2935, 162 L.Ed.2d 866 (2005). Chiesa has not
shown plain error. See id.


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