                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                   U.S. COURT OF APPEALS
                                No. 09-13120         ELEVENTH CIRCUIT
                                                      JANUARY 29, 2010
                            Non-Argument Calendar
                                                          JOHN LEY
                          ________________________
                                                        ACTING CLERK

                     D. C. Docket No. 98-14021-CR-KMM

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                      versus

TIMOTHY CLARK,

                                                              Defendant-Appellant.


                          ________________________

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

                                (January 29, 2010)

Before BLACK, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     Timothy Clark, a pro se federal prisoner, appeals the district courts denial of
his motion for specific performance requesting the government to file a

Fed.R.Crim.P. 35(b) motion for a reduction of his sentence. Clark alleged in his

motion that Special Agent Nicolas Kent and Assistant United States Attorney

James McAdams orally agreed to file a Rule 35(b) motion on his behalf after his

distant cousin Leroy Hayes provided substantial assistance in other criminal

matters.

      Clark argues that he was entitled to have the government file a Rule 35(b)

motion based on the substantial assistance he provided. Clark contends that the

government, per the cooperation agreement, was obligated to consider his

post-sentence cooperation and acted in bad faith by not honoring the agreement.

Moreover, he contends that he was entitled to an evidentiary hearing to determine

whether the government violated its contractual obligations. Finally, Clark argues

that the government’s refusal to file a Rule 35(b) motion was based on an

unconstitutional motive because it violated due process.

      We review de novo whether the district court may compel the government to

file an initial substantial-assistance motion or a supplemental one. United States v.

Forney, 9 F.3d 1492, 1498 (11th Cir. 1993) (addressing a motion under U.S.S.G.

§ 5K1.1). A district court’s decision not to hold an evidentiary hearing is reviewed

only for an abuse of discretion. United States v. Winfield, 960 F.2d 970, 972 (11th



                                          2
Cir.1992).

      Rule 35(b) allows the government to move the district court to reduce a

defendant’s sentence after sentencing when the defendant provides substantial

assistance in investigating or prosecuting another person. See Fed.R.Crim.P.

35(b). The government has the power, but not the duty, to file a Rule 35(b) motion

when the defendant has provided substantial assistance. Wade v. United States,

504 U.S. 181, 185, 112 S.Ct. 1840, 1843, 118 L.Ed.2d 524 (1992) (U.S.S.G.

§ 5K1.1 substantial assistance context).

      The Supreme Court has held that federal district courts may review the

government’s refusal to file a substantial-assistance motion if the defendant first

makes a “substantial threshold showing” that the refusal was based upon an

unconstitutional motive, such as race or religion. Wade, 504 U.S. at 186-87, 112

S.Ct. at 1843-44. In the absence of this showing, the defendant has no right to

discovery or an evidentiary hearing on the issue. Id. at 186, 112 S.Ct. at 1844. In

Wade, the Court noted that a defendant would be entitled to relief if the

prosecutor’s refusal to move was not rationally related to any legitimate

government interest. Id. Applying the Supreme Court’s holding in Wade, we have

concluded that “courts are precluded from intruding into prosecutorial discretion,”

except where there is “an allegation and a substantial showing that the prosecution



                                           3
refused to file a substantial assistance motion because of a constitutionally

impermissible motivation, such as race or religion.” Forney, 9 F.3d at 1501-02.

In Forney, we noted that general contract principles do not control when the

government has not specifically agreed to file a § 5K1.1 motion, and, therefore,

there must be a substantial showing of an unconstitutional motivation in order to

warrant judicial review. Id. at 1500 n.3.

      Accordingly, under the facts of this case, the district court cannot be said to

have erred by denying Clark’s motion for specific performance. Clark failed to

allege that the government failed to file a Rule 35(b) motion based on a recognized

unconstitutional motive. Likewise, Clark was not entitled to an evidentiary hearing

because he failed to allege that the government’s refusal to file a Rule 35(b) motion

was based on a constitutionally impermissible motive.

      AFFIRMED.




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