                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                  APR 1, 2010
                                No. 09-14700                      JOHN LEY
                            Non-Argument Calendar                   CLERK
                          ________________________

                      D. C. Docket No. 03-20551-CR-PCH

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

JACKY BERNARD,

                                                              Defendant-Appellant.


                          ________________________

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

                                  (April 1, 2010)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

     Jacky Bernard, pro se, appeals the district court’s denial of his motion to
compel the district court to reduce his sentence in accordance with Fed. R. Crim. P.

35(b).

         Bernard argues that the district court had jurisdiction to grant him a sentence

reduction, even if the government opposed the reduction, because the

government’s opposition was not rationally related to any legitimate government

means. Bernard claims that his assistance was substantial and caused another

person to agree to cooperate in the apprehension of others. Moreover, Bernard

claims that he relied on a City of Miami Police Department detective’s promise

that the government would file a Rule 35(b) motion, and since the detective was

acting under the authority of the government, the government should perform its

part of the agreement. Bernard claims that there is overwhelming evidence that his

assistance was substantial, and the district court should have awarded him the

reduction despite the government’s opposition because the government did not

deny that his information was helpful but instead simply stated that he did not give

information about the crime for which the person was actually convicted.

         “Upon the government’s motion . . . 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 government has “a

power, not a duty, to file a motion when a defendant has substantially assisted.”



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Wade v. United States, 504 U.S. 181, 185 (1992). However, the government’s

refusal to file a Rule 35(b) motion can be reviewed by the district court, and the

district court can grant relief if it finds that the government’s refusal was based on

an unconstitutional motive, such as race or religion, and therefore not rationally

related to any legitimate government end. Id. at 185-86. See also United States v.

Nealy, 232 F.3d 825, 831 (11th Cir. 2000) (holding that our review of the

government’s refusal to file a Rule 35(b) motion is limited to claims of

unconstitutional motive). Nevertheless, “[a] defendant who merely claims to have

provided substantial assistance or who makes only generalized allegations of an

improper motive is not entitled to a remedy . . . . judicial review is 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.” United States v. Dorsey, 554 F.3d 958, 961 (11th Cir. 2009) (citation

and quotations omitted).

      Here, Bernard has not shown that the government’s refusal to file a Rule

35(b) motion was based on a constitutionally impermissible motive and we

accordingly find no error in the district court’s denial of Bernard’s motion to

compel a sentence reduction based on substantial assistance.

AFFIRMED.



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