           Case: 12-15295   Date Filed: 04/01/2013   Page: 1 of 3


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-15295
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 4:96-cr-00056-RH-WCS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

OSVALDO FRANCISCO GONZALEZ,
a.k.a. Eduardo Gonzalez,

                                                         Defendant-Appellant.

                      ________________________

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

                             (April 1, 2013)

Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
                Case: 12-15295       Date Filed: 04/01/2013       Page: 2 of 3


       In United States v. Gonzales, 239 F.3d 368 (11th Cir. 2000) (Table), we

affirmed appellant’s conviction for conspiracy with intent to distribute cocaine and

cocaine base and his sentence of 360 months’ imprisonment. Appellant

subsequently moved the District Court to vacate his conviction and sentence under

28 U.S.C. § 2255; the District Court denied his motion on August 12, 2004.

       In November 2012, appellant moved the District Court to review under

Federal Rule of Criminal Procedure 35(b) the Government’s decision—made in

1998, prior to the imposition of his sentence—not to consider his request for

substantial assistance. He argued that the Government’s decision impermissibly

punished him (1) for exercising his constitutional right to stand trial and (2) denied

him equal protection of the law, since the Government had given his co-defendants

an opportunity to seek a sentence reduction for providing substantial assistance.

The District Court denied appellant’s motion on the ground that it lacked

jurisdiction to under Rule 35(b) to consider it.1 Appellant appeals that ruling, and

the District Court’s denial of his motion for reconsideration.

        Rule 35(b) states: “Upon 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). The court may consider a government motion to reduce

1
  The court could not entertain the motion under § 2255 unless appellant obtained leave of this
court to file it pursuant to 28 U.S.C. § 2244(b)(3).
                                                2
              Case: 12-15295     Date Filed: 04/01/2013   Page: 3 of 3


a sentence for substantial assistance made more than one year after the sentence

was imposed if: (a) the defendant’s substantial assistance involves information or

evidence not known by the defendant until one year or more after the sentence was

imposed; (b) the defendant provided the information to the government within one

year of sentencing, but the information did not become useful until more than one

year after sentencing; or (c) the usefulness of the information could not have been

anticipated until more than one year after sentencing. Fed. R. Crim. P. 35(b)(2).

      Here, the District Court lacked jurisdiction to entertain appellant’s motion.

While appellant argues that the court possessed jurisdiction under Rule 35(b), his

motion did not implicate Rule 35(b). He has not alleged that he actually assisted

the Government, either before or after sentencing, or that he was entitled to a

substantial assistance motion. Instead, he argues that the Government acted

unconstitutionally when it refused to consider his request for an opportunity to

provide assistance. His claim was thus not cognizable under Rule 35(b), but was

instead a generalized claim that the Government acted unconstitutionally. The

district court simply had no jurisdiction over such a claim unanchored to Rule 35.

See Diaz-Clark, 292 F.3d at 1315-16 (holding that district court acted without

jurisdiction when it resentenced defendant based on its “inherent authority” to

modify a sentence it deemed illegal).

      AFFIRMED.


                                          3
