              Case: 13-11291   Date Filed: 12/06/2013   Page: 1 of 7


                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                       _____________________________

                                No. 13-11291
                            Non-Argument Calendar
                       _____________________________

                  D.C. Docket No. 1:10-cr-00233-ODE-LTW-1



UNITED STATES OF AMERICA,
                                                        Plaintiff-Appellee,

                                     versus

WALTER JOHNS,
                                                        Defendant-Appellant.

                       _____________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                     _____________________________

                               (December 6, 2013)

Before MARCUS, KRAVITCH, and JORDAN, Circuit Judges.

PER CURIAM:

      Believing that the government had reneged on its promise to file a

substantial-assistance motion pursuant to Rule 35 of the Federal Rules of Criminal
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Procedure, Walter Johns filed a motion to compel the government to do so. The

district court denied Mr. Johns’ motion without an evidentiary hearing, and Mr.

Johns now appeals. Following a review of the record and the parties’ briefs, we

affirm.


                                          I
      Mr. Johns pled guilty to a conspiracy to possess with the intent to distribute

at least 5 kilograms of cocaine and was sentenced to 240 months in prison, the

mandatory minimum, followed by 10 years of supervised release. As part of his

plea, Mr. Johns agreed to cooperate with the government, and the plea agreement

in turn provided that “[i]f . . . cooperation [was] completed after sentencing and the

Government determine[d] that such cooperation qualifie[d] as ‘substantial

assistance’ pursuant to Rule 35(b) . . . , the Government w[ould] file a motion for

reduction of sentence.” D.E. 21 at 7-8 (emphasis added). Believing that he

provided substantial assistance in the investigation and prosecution of his co-

defendant Jerrick Williams, who later pled guilty, Mr. Johns filed a pro se motion

to compel the government to file a motion for a downward departure to his

sentence, a motion he later amended with the assistance of counsel. According to

letters attached to Mr. Johns’ motion, the government had refused to file the

motion because it determined that Mr. Johns’ cooperation did not “‘play a large




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part’ in Mr. Williams’ decision to plead guilty.” D.E. 105 at 3. The district court

denied Mr. Johns’ motion to compel, and he timely filed this appeal.


                                        II
      At the outset, we address the government’s argument that we lack

jurisdiction over Mr. Johns’ appeal. It is beyond dispute that “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 (1992). See also United

States v. McNeese, 547 F.3d 1307 (11th Cir. 2008) (applying Wade to a Rule 35

motion). In addition, district courts have original jurisdiction “in the nature of

mandamus to compel an officer or employee of the United States or any agency

thereof to perform a duty owed to the plaintiff.” 28 U.S.C. §1361. Although, as

discussed below, the standard of review varies depending on how we characterize

Mr. Johns’ motion, the existence of our jurisdiction does not. The district court’s

order denying the motion was a final appealable order, and Mr. Johns filed his

notice of appeal within 14 days of the entry of judgment. Accordingly, we have

jurisdiction on appeal. See 28 U.S.C. §1291; Fed. R. App. P. 4(b)(1)(A)(i).


                                        III
      If Mr. Johns’ motion is construed as invoking the district court’s authority to

reduce a sentence in the absence of a government motion pursuant to Rule 35, the

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district court’s denial would call for de novo review. See United States v. Forney,

9 F.3d 1492, 1498 (11th Cir. 1993).           Similarly, “[w]hether the Government

breached a plea agreement is a question of law, to be reviewed de novo.” United

States v. De La Garza, 516 F.3d 1266, 1269 (11th Cir. 2008). On the other hand,

we review the denial of a petition for a writ of mandamus for abuse of discretion.

See Kerr v. U.S. Dist. Ct. for the N. Dist. of Cal., 426 U.S. 394, 403 (1976) (“[I]t is

important to remember that issuance of the writ is in large part a matter of

discretion with the court to which the petition is addressed.”). We need not,

however, decide which of these standards applies here because we hold that the

district court’s order passes muster under either standard.

      Under Rule 35, the government has the power, but not the duty, to file a

motion for a downward sentencing departure when the defendant provides

substantial assistance within one year of sentencing. See Wade, 504 U.S. at 185.

Although federal district courts may review the government’s refusal to file a Rule

35 motion, in order to prevail the defendant must make a “substantial threshold

showing” that “the refusal was based on an unconstitutional motive,” such as race

or religion, or demonstrate that the refusal “was not rationally related to any

legitimate Government end.” Id. at 185-86. The district court correctly found that

Mr. Johns failed to make this threshold showing.




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      Mr. Johns argues with some force that he provided substantial assistance to

the government following his sentencing.        Yet he does not allege that the

government’s refusal to file a Rule 35 motion stems from any unconstitutional

motive. Instead, he merely asserts that “[f]ailing to give anyone credit for honest

substantial assistance that led to the investigation and prosecution of another

person is certainly not a legitimate government interest and violates

constitutionally protected rights.” Appellant’s Br. at 19. But, as the Supreme

Court has made clear, “a claim that a defendant merely provided substantial

assistance,” even when coupled with “additional but generalized allegations of

improper motive,” “will not entitle a defendant to a remedy or even to discovery or

an evidentiary hearing.”    Wade, 504 U.S. at 186. Instead, a defendant must

provide “an allegation and a substantial showing that the prosecution refused to

file a substantial assistance motion because of a constitutionally impermissible

motivation.” Forney, 9 F.3d at 1502. Because Mr. Johns does little more than

recount the assistance he provided to the government, the district court correctly

found that he failed to meet this standard, and thus he was “not entitled to a remedy

or to even an evidentiary hearing.” United States v. Dorsey, 554 F.3d 958, 961

(11th Cir. 2009).

      The district court also correctly found that the government’s refusal to file a

Rule 35 motion did not constitute a breach of the plea agreement. Mr. Johns

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argues that his plea agreement created a binding obligation on the government to

file a downward departure motion if he provided substantial assistance. But this

argument ignores the plain language of the plea agreement, which provides that the

government “will file” a motion only if “the Government determines,” in its sole

discretion, that Mr. Johns’ cooperation qualifies as substantial assistance. D.E. 21

at 7-8 (“[T]he determination as to whether Defendant has provided ‘substantial

assistance’ rests solely with the Government.”) (emphasis added). Because the

government here determined that Mr. Johns’ cooperation did not amount to

substantial assistance, it did not breach any express promise to file a downward

departure motion.    See Forney, 9 F.3d at 1499 n.2 (declining to review the

government’s refusal to file a motion under U.S.S.G. § 5K1.1 under contract

principles where there was no evidence that “the government failed to comply with

[an] explicit provision of the plea agreement”).

      Finally, Mr. Johns asserts that the government acted arbitrarily and in bad

faith in determining whether his cooperation amounted to substantial assistance.

But, even if we disagreed with the government’s assessment of Mr. Johns’

cooperation, “courts are precluded from intruding into prosecutorial discretion” by

“evaluat[ing] the assistance rendered by a defendant offering cooperation as a term

of his plea agreement unless and until the government makes a . . . motion for

downward departure based on substantial assistance.” Forney, 9 F.3d at 1501.

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Accordingly, under the law of this circuit, a defendant may not challenge the

government’s refusal to file a substantial-assistance motion on the grounds of

generalized bad faith. See id. at 1501 n.4 (explaining that, under “the [Supreme]

Court’s clear holding in Wade[,] . . . judicial review of the government’s decision

not to file a 5K1.1 motion is appropriate only when unconstitutional motivation has

been alleged”).


                                       IV
      For the foregoing reasons, we affirm the district court’s denial of Mr. Johns’

motion to compel the government to file a motion for a substantial-assistance

departure pursuant to Rule 35.

      AFFIRMED.




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