                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT           FILED
                             ________________________ U.S. COURT OF APPEALS
                                                                        ELEVENTH CIRCUIT
                                                                        DECEMBER 15, 2011
                                    No. 09-16048
                                                                            JOHN LEY
                              ________________________
                                                                             CLERK

                          D. C. Docket No. 07-14075-CR-JEM


UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

DAVID LEIGH KNOWLES,

                                                                       Defendant-Appellant.

                              ________________________

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

                                    (December 15, 2011)

Before WILSON and FAY, Circuit Judges, and RESTANI,* Judge.


       *
         Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
PER CURIAM:

      David Lee Knowles appeals the denial of his second motion to compel the

government to file a Rule 35(b) motion to reduce his sentence based on substantial

assistance. See FED. R. CRIM. P. 35(b). In December 2008, Knowles filed his first

pro se motion to compel. The district court construed this motion not as a motion

to compel, but rather as a Rule 35(b) motion, which only the government may

bring. Id. (requiring filing “[u]pon the government’s motion . . . .”). The district

court denied without prejudice Knowles’s December 2008 motion because

criminal defendants may not bring Rule 35(b) motions. Knowles did not appeal

this denial.

      In Knowles’s second pro se motion, filed in October 2009, Knowles

requested reconsideration of his December 2008 Motion and attached

documentation indicating that he had an agreement with the government requiring

the government to file a Rule 35(b) motion. The district court construed the

December 2009 motion as a motion to reconsider Knowles’s October 2008

motion, and dismissed it again on the grounds that Knowles could not file a Rule

35(b) motion. Knowles timely appealed this denial.

      Motions filed pro se must be construed liberally to afford review on any

“legally justifiable base.” Sanders v. United States, 113 F.3d 184, 187 (11th Cir.

                                          2
1997) (per curiam). The district court did not liberally construe the December

2008 and October 2009 motions when it construed them as Rule 35(b) motions,

which Knowles could not legally bring. Liberally understood, these motions are

properly construed as a motion to compel the government to file a Rule 35(b)

motion, and a subsequent motion to compel, which was timely appealed. We

make no determination on the merits of Knowles’s second motion; we simply find

that the district court improperly dismissed it.

      We therefore reverse the district court’s denial of Knowles’s December

2009 motion and remand for consideration of Knowles’s second motion to compel

the United States to file a Rule 35(b) motion.

      REVERSED AND REMANDED.




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