BLD-027                                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 11-3464
                                     ___________

                           UNITED STATES OF AMERICA

                                           v.

                                 CHAD FRANK,
                                           Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                         (D.C. Criminal No. 2-04-cr-00029)
                          District Judge: Berle M. Schiller
                     ____________________________________

                       Submitted for Possible Summary Action
                  Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   October 27, 2011
              Before: SCIRICA, SMITH and CHAGARES, Circuit Judges

                              (Filed: November 10, 2011)
                                      _________

                              OPINION OF THE COURT
                                    _________

PER CURIAM.

      Federal inmate Chad Frank appeals from an order of the District Court denying a

motion for reconsideration in his criminal proceedings. The order effectively upheld the

District Court’s earlier denial of Frank’s motion to compel the Government to move for a

substantial assistance-based sentence reduction. We will summarily affirm.
                                              I.

       Frank was sentenced to a term of 420 months of imprisonment following an open

guilty plea to criminal offenses that involved child pornography. Frank’s sentence was

outside the recommended guidelines range of 262-327 months. We found no error in the

District Court’s application of certain sentencing enhancements, and we concluded that

its ultimate sentence—the product of an upward departure—was reasonable. See United

States v. Frank, 195 F. App’x 114, 117 (3d Cir. 2006).

       Years later, Frank filed a pro se motion for “specific performance,” in which he

asked the District Court to compel the Government’s filing of a motion under Rule 35(b)

of the Federal Rules of Criminal Procedure. That rule provides for the reduction of a

defendant’s sentence if he provides the Government with “substantial assistance in

investigating or prosecuting another person.”

       In his motion, Frank made the following general averments: (1) that he had

“cooperated with the government’s prosecution of a large pedophile, child molester and

distribution of pornography ring”; (2) that “the government asserted that defendant’s

cooperation was essential, imperative and crucial to its cause and target of prosecution”;

and (3) that “the United States advised defendant that it intended to make a substantial

assistance motion pursuant to the terms of and conditions of the plea agreement at the

conclusion of the investigation.” Frank also described the specific nature of his

participation in the relevant criminal investigation:

              Prior to defendant’s conviction and sentence and in
              conjunction with the written agreement, he did provide fact
              specific information regarding one Dustan Dennington. As

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             an initial matter defendant informed authorities of a ‘boy
             lovers’ gathering in Philadelphia and Dennington’s
             participatory role. Further, defendant provided authorities
             with Dennington’s online screen name, ‘Weatherboy,’ which
             allowed authorities an intricate viewing of illicit activities.

                                     *      *      *

             Accordingly, the government agents used the information
             provided by the defendant, in large part, to obtain search
             warrants that resulted in obtaining crucial evidence against
             Dennington. Defendant’s cooperation was significant and
             substantial to the extent he was ‘furloughed’ during the
             pendency of his case for the purpose of cooperating with law
             enforcement officials communicating online with other
             individuals known to be sexually interested in children.

      The Government responded to Frank’s motion by pointing out that “[b]ecause

Frank refused to sign a written guilty plea agreement, there were no specific terms and

conditions of an agreement which the government is now bound to honor.” In addition,

the Government stated that “[t]here is no active investigation or prosecution underway in

the Eastern District of Pennsylvania of a child pornography ring based upon information

provided by the defendant, nor is counsel aware of any investigations or prosecution that

are active in any other district based on information provided by the defendant.” By

order entered June 14, 2011, the District Court denied Frank’s Rule 35(b) motion for the

reasons given in the Government’s response.

      Frank filed a motion for reconsideration. Attached to Frank’s motion was a

portion of our opinion in United States v. Dennington, 399 F. App’x 720 (3d Cir. 2010).

The opinion explained that an affidavit from Frank was used as the basis for a

government search warrant application that targeted the home of Dennington. The search


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of Dennington’s home “turned up a computer on which were stored between 10 and 150

unlawful images” of child pornography. Id. at 721. Dennington was arrested and

eventually pleaded guilty to violating 18 U.S.C. § 2252. He was sentenced to five years

of imprisonment. We affirmed Dennington’s criminal judgment on appeal. See id. at

728.

       The District Court denied Frank’s motion for reconsideration in a one-sentence,

August 22, 2011 order. Frank appealed.

                                              II.

       The District Court had subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331,

3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.

       The denial of a motion for reconsideration is reviewed for abuse of discretion.

United States v. Dupree, 617 F.3d 724, 732 (3d Cir. 2010). The purpose of a motion for

reconsideration “is to correct a clear error of law or to prevent a manifest injustice in the

District Court’s original ruling.” Id.

                                             III.

       In this case, no evidence of a cooperation agreement between the Government and

Frank was presented to the District Court. In the absence of such an agreement, “it is

clear that the prosecutor has almost unreviewable discretion over whether to file a

substantial assistance motion.” United States v. Isaac, 141 F.3d 477, 481 (3d Cir. 1998).

       Two exceptions permitting federal court review of such prosecutorial discretion

have been found to exist: where there is evidence that Government’s refusal is “based on

an unconstitutional motive,” and where there is evidence that the refusal is “not rationally

                                              4
related to any legitimate Government end.” Wade v. United States, 504 U.S. 181, 185-86

(1992). “[A] claim that a defendant merely provided substantial assistance will not

entitle a defendant to a remedy or even to discovery or an evidentiary hearing.” Id. at

186. Rather, the movant must make a “substantial threshold showing” of impropriety in

the Government’s refusal to seek a sentence reduction. Id. at 185.

         We have carefully considered the parties filings in the District Court and Frank’s

submission on appeal. We conclude that Frank has failed to make the extraordinary

showing necessary under the Wade standard and, as result, we conclude that the District

Court cannot be found to have abused its discretion in denying reconsideration of the

June 14, 2011 order denying Frank’s motion for specific performance. Specifically,

Frank failed to put forth any evidence in the District Court indicating impropriety in the

Government’s refusal to file a Rule 35(b) motion.

         Accordingly, we will summarily affirm the August 22, 2011 order of the District

Court.




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