                    Case: 12-10033         Date Filed: 08/14/2012   Page: 1 of 6

                                                                       [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-10033
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 0:96-cr-06051-WPD-2



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                            Plaintiff-Appellee,

                                                 versus



JOSE GABRIEL URIBE,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

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

                                           (August 14, 2012)

Before BARKETT, PRYOR and ANDERSON, Circuit Judges.
                Case: 12-10033        Date Filed: 08/14/2012       Page: 2 of 6

PER CURIAM:

       Jose Uribe, proceeding pro se, appeals the district court’s denial of his

petition for a writ of mandamus to compel the government to file a Federal Rule of

Criminal Procedure 35(b) motion for reduction of his sentence. On appeal, Uribe

argues that the government’s refusal to file a Rule 35 motion in his case was based

on an unconstitutional motive, such as his race or religion, in bad faith, and not

rationally related to a legitimate government end.1 Uribe notes that he is dark-

skinned, Colombian, and Jewish, and he suggests that the government has a record

of not moving for sentence reductions for Hispanic and Jewish defendants.

Additionally, Uribe contends that the court abused its discretion in denying his

motion without granting him an evidentiary hearing.

       A district court has original jurisdiction 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. “The remedy of mandamus is a drastic one, to be invoked only



       1
                On March 31, 2009, Uribe signed a cooperation letter that provided, inter alia,
that: “The defendant acknowledges and agrees . . . that nothing in this Agreement may be
construed to require this Office [of the United States Attorney] to file any such [Rule 35] motions
and that this Office’s assessment of the nature, value, truthfulness, completeness, and accuracy of
the defendant’s cooperation shall be binding insofar as the appropriateness of this Office’s filing
of any such motion is concerned.” Thus, for what appears to be good reason, Uribe has
abandoned on appeal his argument that the government breached an agreement between the
parties by not filing a Rule 35 motion. See United States v. Cunningham, 161 F.3d 1343, 1344
(11th Cir. 1998) (holding that issue is abandoned where the defendant fails to argue it on appeal).

                                                2
              Case: 12-10033     Date Filed: 08/14/2012    Page: 3 of 6

in extraordinary situations.” In re BellSouth Corp., 334 F.3d 941, 953 (11th Cir.

2003) (quotations and alteration omitted). “The party seeking mandamus has the

burden of demonstrating that its right to issuance of the writ is clear and

indisputable.” Id. (quotations omitted). A writ of mandamus “is only appropriate

when: (1) the plaintiff has a clear right to the relief requested; (2) the defendant

has a clear duty to act; and (3) no other adequate remedy is available.” Cash v.

Barnhart, 327 F.3d 1252, 1258 (11th Cir. 2003) (quotations and alteration

omitted). As Uribe sought relief pursuant to § 1361, his motion to compel specific

performance is a petition for a writ of mandamus, and this Court reviews the

district court’s decision for an abuse of discretion. See Kerr v. U.S. Dist. Ct. for

the N. Dist. of Cal., 426 U.S. 394, 403, 96 S. Ct. 2119, 2124 (1976).

      Rule 35(b)(1) provides that, “[u]pon the government’s motion made within

one year of sentencing, the court may reduce a sentence if the defendant, after

sentencing, provided substantial assistance in investigating or prosecuting another

person.” Fed. R. Crim. P. 35(b)(1). In addition, Rule 35(b)(2) states:

      Upon the government’s motion made more than one year after
      sentencing, the court may reduce a sentence if the defendant’s
      substantial assistance involved:

             (A) information not known to the defendant until one year or
             more after sentencing;



                                           3
              Case: 12-10033     Date Filed: 08/14/2012   Page: 4 of 6

             (B) information provided by the defendant to the government
             within one year of sentencing, but which did not become useful
             to the government until more than one year after sentencing; or

             (C) information the usefulness of which could not reasonably
             have been anticipated by the defendant until more than one
             year after sentencing and which was promptly provided to the
             government after its usefulness was reasonably apparent to the
             defendant.

Fed. R. Crim. P. 35(b)(2).

      The government has the power, but not the duty, to file a substantial-

assistance motion when the defendant has provided substantial assistance. See

Wade v. United States, 504 U.S. 181, 185, 112 S. Ct. 1840, 1843 (1992)

(addressing the government’s failure to file a substantial-assistance motion in the

U.S.S.G. § 5K1.1 context); United States v. McNeese, 547 F.3d 1307, 1308-09

(11th Cir. 2008) (applying Wade in the Rule 35(b) context). Federal district courts

may review the government’s refusal to file a substantial-assistance motion if the

defendant first makes a “substantial threshold showing” that the refusal was based

upon an unconstitutional motive, such as race or religion. Wade, 504 U.S. at 185-

86, 112 S. Ct. at 1843-44. In addition, review would also be authorized where the

prosecutor’s motive in refusing to move “was not rationally related to any

legitimate Government end.” Id. at 186, 112 S. Ct. at 1844. However, a defendant

is not entitled to a remedy or even an evidentiary hearing where he merely claims

                                         4
              Case: 12-10033     Date Filed: 08/14/2012   Page: 5 of 6

that he provided substantial assistance or makes generalized allegations of

improper motive; instead, he must make a “substantial threshold showing” of

improper motive. Id. at 186, 112 S. Ct. at 1844.

      In applying Wade, we have stated that, when the government does not file a

motion for substantial assistance, “courts are precluded from intruding into

prosecutorial discretion,” except where 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.”

United States v. Forney, 9 F.3d 1492, 1501-02 (11th Cir. 1993). Consequently, we

have rejected the argument that judicial review of a prosecutor’s decision not to

file a Rule 35 motion would be proper where a defendant alleged that the

government’s refusal to file was in bad faith, but not unconstitutionally motivated.

See id. at 1501 n.4 (explaining that review is appropriate only when an

unconstitutional motive has been alleged, as other analyses would invade

prosecutorial discretion and contradict Wade); see also United States v. Nealy, 232

F.3d 825, 831 (11th Cir. 2000) (limiting “our review of the government’s refusal

to file substantial assistance motions to claims of unconstitutional motive”).

      The district court did not abuse its discretion by denying Uribe’s petition for

a writ of mandamus. Nor did the district court abuse its discretion in refusing to

                                          5
                Case: 12-10033       Date Filed: 08/14/2012       Page: 6 of 6

hold an evidentiary hearing on this issue. See United States v. Dorsey, 554 F.3d

958, 961 (11th Cir. 2009) (explaining that a defendant is not entitled to an

evidentiary hearing because he “merely claims to have provided substantial

assistance or makes only generalized allegations of an improper motive”). Uribe

has failed to make a “substantial threshold showing” that the government’s refusal

to file a Rule 35 motion in his case was based on an unconstitutional motive,

having presented only generalized allegations with no evidentiary support.2

Further, his assertions that the government’s refusal to file was in bad faith or

resulted from the government’s undervaluing his cooperation are not sufficient to

trigger judicial review. Accordingly, we affirm.

       AFFIRMED.3




       2
                The record belies Uribe’s vague suggestions that the prosecution had a “hidden
agenda” that involved discriminating against “dark-skinned” individuals and refusing to move for
sentence reductions for “Hispanic/Jewish defendants that have provided substantial assistance.”
According to the government, the information Uribe provided was already known to the
government, and his assistance was therefore not substantial and did not warrant a Rule 35
motion. The government has demonstrated that it filed Rule 35 motions with respect to only
those co-conspirators, Hispanic or otherwise, who had provided substantial assistance—i.e., their
assistance led to the indictment of others. The government also notes that Uribe’s PSI lists his
race as “white/hispanic,” and that the government was not even aware that Uribe practices the
Jewish religion.
       3
              Uribe’s request for oral argument is DENIED.

                                               6
