                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                      FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                  July 05, 2006
                               No. 05-15821                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                     D. C. Docket No. 01-14049-CR-KMM

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

EDWARD EUGENE MARSHALL,

                                                             Defendant-Appellant.


                         ________________________

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

                                 (July 5, 2006)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

     Appellant Edward Marshall, a federal prisoner, appeals the district court’s
order denying his motion to compel the government to file a Fed. R. Crim. P. 35(b)

motion for a reduction in sentence. Marshall argues that because he provided

substantial assistance to the government and the government had no rational reason

not to file a Rule 35(b) motion, he is entitled to an evidentiary hearing to establish

his entitlement to a Rule 35(b) motion for a reduction in sentence.

      Whether the government can be compelled to file a substantial assistance

motion is a question of law that we review de novo. See United States v. Forney, 9

F.3d 1492, 1498 (11th Cir. 1993). A district court’s decision not to hold an

evidentiary hearing is reviewed for an abuse of discretion. United States v.

Winfield, 960 F.2d 970, 972 (11th Cir. 1992).

      Federal Rule of Criminal Procedure 35(b)(2) provides that, 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 not known

by the defendant, not useful to the government, or the usefulness of which was not

reasonably anticipated by the defendant, until more than one year after sentencing.

Fed. R. Crim. P. 35(b). The government has “a power, not a duty, to file a motion

when a defendant has substantially assisted.” Forney, 9 F.3d at 1500 (quoting

Wade v. United States, 504 U.S. 181, 185, 112 S. Ct. 1840, 1843, 118 L. E. 2d 524



                                           2
(1992) (U.S.S.G. § 5K1.1 substantial assistance context). We limit our “review of

the government's refusal to file substantial assistance motions to claims of

unconstitutional motive.” United States v. Nealy, 232 F.3d 825, 831 (11th Cir.

2000). 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, 504 U.S. at 186, 112

S. Ct. at 1844. Thus, judicial review is generally appropriate only 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.” Forney, 9 F.3d at 1502.

      The record demonstrates that Marshall alleged only bad faith as the

motivation for the government’s refusal to file a Rule 35(b) motion to reduce his

sentence. Marshall made neither an allegation nor a substantial showing of a

constitutionally impermissible motivation. Therefore, the district court was

without authority to review the government’s exercise of prosecutorial discretion,

and Marshall was entitled to neither an order to compel nor an evidentiary hearing.

      AFFIRMED.




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