     Case: 14-50034      Document: 00512732426         Page: 1    Date Filed: 08/13/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit

                                                                               FILED
                                    No. 14-50034                         August 13, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RAFAEL NIETO-JAIMES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:10-CR-545-2


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Rafael Nieto-Jaimes, federal prisoner # 84753-080,
appeals the denial of his motion to compel the government to move to reduce
his sentence under Rule 35 of the Federal Rules of Criminal Procedure. He
claims here, as he did in the district court, that the government orally agreed
at sentencing to file such a motion for testimony he was expected to give after




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 14-50034    Document: 00512732426     Page: 2   Date Filed: 08/13/2014


                                 No. 14-50034

sentencing and that the government then refused to file the motion after the
expected testimony became unnecessary.
      As an initial matter, we must consider the basis for our own jurisdiction
and that of the district court. See United States v. Key, 205 F.3d 773, 774 (5th
Cir. 2000).   The district court has jurisdiction to correct or modify Nieto-
Jaimes’s sentence in limited circumstances under 18 U.S.C. § 3582(b) and (c).
The applicable provision confers jurisdiction if the government moves to reduce
a sentence under Rule 35(b). § 3582(c)(1)(B).
      Assuming arguendo that a promise was made, the district court has
jurisdiction to review the government’s refusal to file a Rule 35 motion only
when “that refusal is based on an unconstitutional motive, such as race or
religion, or the government has bargain[ed] away its discretion.” United States
v. Grant, 493 F.3d 464, 467 (5th Cir. 2007) (internal quotation marks and
citation omitted).    Nieto-Jaimes has not alleged or demonstrated any
unconstitutional motive that might have permitted the court to review the
government’s refusal to file a Rule 35(b) motion. Neither does the record
indicate that the government bargained away its discretion with respect to
filing a motion under Rule 35. Nieto-Jaimes’s motion to compel was thus “an
unauthorized motion which the district court was without jurisdiction to
entertain,” because the “motion and situation do not fit any provision” of Rule
35. United States v. Early, 27 F.3d 140, 141-42 (5th Cir. 1994). Accordingly,
we AFFIRM on the alternative basis that the district court lacked jurisdiction
to grant the motion. See id. at 142.




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